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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LBRARY 


A  TREATISE 


ON   THE 


LAW  OF  DAMAGES, 


EMBRACING 


AN  ELEMENTARY  EXPOSITION  OF  THE  LAW, 


AND   ALSO 


ITS  APPLICATION  TO  PARTICULAR  SUBJECTS  OF 
CONTRACT  AND  TORT. 


BY  J.  G.  SUTHEELAE^D. 


VOL.  L 


CHICAGO: 

CALLAGHAN  &  COMPANY 

1883. 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  eighty -two. 

By  CALLAGHAN  &  COMPANY, 

in  the  oflSce  of  the  Librarian  of  Congi-ess.  at  Washington,  D.  C. 


T 

Skg44a 

t8?3 


DAVID  ATWOOD, 

PRINTER   AND   aTEREOTYPER, 
MADISON,  WIS. 


h 


PREFACE, 


The  law  of  damages  is  now,  and  for  many  years  has  been, 
in  the  course  of  rapid  and  expansive  growth ;  its  former  apph- 
cations  have  been  subjected  to  frequent  forensic  and  judicial 
review,  with  the  advantage  of  the  experience  and  learning  of 
the  past,  and  the  stimulus  as  well  as  the  suggestive  aid  of  new 
and  diversified  interests,  demanding  protection,  and  new  forms 
of  injury,  invoking  redress. 

It  is  therefore  desirable  that  the  laAV  be  often  rewritten  to 
incorporate  in  its  structure  the  results  of  the  latest  adjudica- 
tions, not  only  for  the  light  they  reflect  upon  the  earlier  cases, 
but  to  derive  the  full  benefit  of  these  accretions,  which  embody 
the  contributions  of  contemporary  jurists  and  master  minds  of 
the  profession. 

The  administration  of  justice  is  committed  to  so  many  inde- 
pendent tribunals,  that  it  is  not  sui-prising  their  determinations, 
especially  of  questions  of  first  impression,  have  not  proceeded 
in  a  very  harmonious  current.  Differences  of  judicial  opinion, 
more  or  less  radical,  under  such  circumstances,  are  unavoidable. 
These  are  liable  to  result  in  permanent  divergencies;  and  to 
beget  local  exceptions  and  peculiarities,  so  numerous  as  to 
greatly  mar  the  symmetry  and  impair  the  authority  of  our 
general  jurisprudence. 

Frequent  elementary  expositions  of  the  law,  embracing  a 
discussion  of  the  discordant  cases  with  reference  to  the  general 
principles  which  all  acknowledge,  are  of  great  importance ;  for. 
to  the  extent  that  they  are  infiuential,  they  will  counteract  this 
centrifugal  tendency. 

It  is  believed  that  the  work  now  offered  will  be  found  useful 
in  these  respects,  notwithstanding  that  excellent  works  on  the 
same  subject  are  now  in  general  use.     It  has  extended  to  three 


o. 


75S02 


Tl  PKEFACE. 

volumes  by  being  made  to  embrace  a  wide  range  of  topics, 
germane  to  the  general  subject,  and  by  an  elementary  and  a 
minutely  practical  treatment  of  them. 

The  First  Part  is  elementary,  and  designed  to  aid  the  in- 
quiries of  the  student,  and  to  f acihtate  the  investigations  of  the 
practitioner.  In  it  are  stated  and  illustrated  the  general  prin- 
ciples upon  which  damages,  recognized  under  various  names, 
are  allowed  by  law;  their  scope  relatively  to  the  injury  to  be 
redressed ;  the  principles  by  which  the  elements  of  damage  may 
be  tested,  and  the  amount  to  be  allowed  therefor  determined ; 
by  which  facts  may  be  legitiinately  weighed  to  enhance  or 
mitigate  damages ;  how  they  may  be  juridically  or  convention- 
ally liquidated  and  satisfied ;  and  the  pleadings,  evidence  and 
procedure  suitable  and  necessary  for  their  recovery. 

The  Second  Part  contains  a  particular  discussion  of  these 
principles  in  their  practical  application  to  the  subjects  of  con- 
tract and  tort,  which  give  rise  to  actual  demands  for  damages. 

The  whole  is  copiously  elucidated  by  decided  cases  and 
apposite  quotations;  and  the  supporting  authorities  will,  it  is 
beheved,  be  found  to  embrace  all  the  decisions  of  any  impor- 
tance on  the  subject. 

The  author  submits  his  work  with  its  faults — for  he  dare  not 
hope  it  will  be  found  faultless  —  to  the  indulgent  judgment  and 
fair  criticism  of  the  profession. 

J.  G.  S. 

Salt  Lake  Cpty,  September,  1882. 


TABLE  OF  CONTENTS. 


PAKT  I.— AN  ELEMENTARY  EXPOSITION  OF  THE 
LAW  OF  DAMAGES. 


CHAPTER  I.—  DAMAGES. 

Pages. 

A     GEKERAL    STATEMENT     OF    THE    RIGHT    TO    DAMAGES,   THEIR    LEGAL 

QUALITY  AND  KINDS,       -------1 

CHAPTER  II.— NOMINAL  DAMAGES. 
Their    nature   and    purpose  —  illustrations    of    the    absolute 

RIGHT  to  them  WHEN  A  LEGAL  RIGHT  HAS   BEEN   VIOLATED,        -  9 

CHAPTER  III.—  COMPENSATION. 

Section  1. —  The  controlling  principle  of  co3ipensatory  dam- 
ages; AND  the  scope  OF  LEGAL  RESPONSIBILITY  —  REMOTE  AND 
proximate  cause,  -------17 

Section  2. —  Direct  damages,      -  -  -  -  -  -19 

Sections. —  Consequential  damages. —  For  probable  consequences 
of  tort  —  General  illustrations  —  Not  necessary  tliat  such  conse- 
quences be  certain  to  happen  —  Nor  that  they  may  be  foreseen  as 
they  occur  —  The  efficient  cause  responsible  though  other  causes 
intervene  —  Illustrations  —  For  wilful,  malicious,  fraudulent  and 
reckless  wrongs,  remoter  consequences  taken  into  account,         -        20 

Section  4. —  Consequential  damages. —  For  breach  of  contract,  only 
the  damages  contemplated  by  the  parties,    -  -  -  -        74 

Section  5. —  Required  certainty  of  damages. —  Liability  for  prin- 
cipal loss  extends  to  details  and  incidents  —  Only  certain  items 
recoverable  —  Recovery  on  successive  consequences  —  Required 
certainty  to  recover  for  anticipated  profits  —  Warranty  of  seeds  — 
Prospective  gi'owth  of  fruit  orchard  —  Profits  of  special  con- 
tracts —  From  commercial  ventures  —  Tortious  interference  with 
business  —  Chance  to  compete  for  prize  —  Uncertain  mitigation  of 
breach  of  marriage  promise  —  Failure  to  provide  sinking  fund,  94 


Vlll  TABLE    OF    CONTENTS. 

Pay<t. 
Section  6. —  The  constituents  op  compensation,  or  elements  of 
DAMAGE. —  Principal  and  interest  on  mere  contracts  to  pay 
money  —  Other  damages  recoverable  vvliere  other  objects  than  to 
discharge  a  debt  —  For  breach  of  other  contracts,  gains  prevented 
and  losses  sustained  —  Wliat  may  be  recovered  for  gains  pre- 
vented —  For  total  breach,  the  value  of  the  contract,  and  propor- 
tionately for  partial  breach  —  What  may  be  recovered  for  losses 
sustained;  first,  direct  deprivation  of  money,  property  or  rights 
by  the  breach;  second,  for  preparation  to  perform  and  part  per- 
formance; third,  money  paid  and  acts  done  to  obtain  the  object  of 
contract  lost  by  breach;  fourth,  necessary  payments  to  third  per- 
sons in  consequence  of  breach;  fifth,  labor  and  money  to  lessen 
and  prevent  damages  from  breach,  and  to  obtain  object  of  con- 
tract after  breach  —  Elements  of  damage  for  personal  torts  — 
Damages  for  breach  of  contract  may  include  other  than  pecuniary 
elements  —  Right  to  compensation  for  tort  and  breach  of  contract 
independent  of  motive  —  Distinctions  made  for  bad  motive,  and 
in  decision  of  uncertain  damages  between  actions  of  tort  and  upon 
contract  —  Between  wilful  and  inadvertent  confusion  of  goods  — 
Where  property  sued  for  improved  by  wrongdoer  —  Distinctions 
in  matter  of  proof  —  Value  of  propertj^  as  element  of  damage  and 
interest,  -  -  -  -  --  -  -  -      127 

CHAPTER  IV.—  ENTIRETY  OF  CAUSES  OF  ACTION  AND  DAMAGES. 

Section  1. —  General  principles. —  Damages  for  a  cause  of  action 
not  divisible  —  All  to  be  claimed  in  one  action  though  they  extend 
into  the  future  —  What  is  an  entire  demand  —  Parties  may  sever 
an  entire  demand  —  Contract  to  do  several  things  successively, 
or  one  thing  continuously  —  Items  of  account  —  Continuing  ob- 
ligations —  Not  necessary  all  damages  should  accrue  before  action 
brought  —  Contracts  of  indemnity  —  Where  property  taken  for 
public  use — What  is  not  a  double  remedy  —  Prospective  dam- 
ages —  Certainty  of  proof  of  future  damages  —  Action  for  enticing 
away  apprentice,  servant  or  son — Future  damages  for  personal 
injuries  —  Only  present  worth  of  future  damages  given  —  Continu- 
ous breach  of  contract  or  wrong  not  an  entirety  —  The  law  will 
not  presume  a  continuance  of  wrong  —  Nuisance  by  flooding  land  — 
The  necessity  of  successive  actions,  -----      l7o 

Section  2.— Parties  to  sue  and  be  sued.—  Damages  to  joint  parties 
injured,  entire  —  Must  be  recovered  by  person  in  whom  legal  inter- 
est vested  —  Not  joint  when  contract  apportions  the  legal  interest  — 
Implied  assumpsit  follows  consideration  —  Effect  of  release  by  or 
death  of  one  of  several  entitled  to  entire  damages  on  contract  — 
Misjoinder  of  plaintiffs,  when  fatal  objection  —  Joinder  of  defend- 
ants; effect  of  nonjtnnder  and  misjoinder  —  How  joint  liability 
extinguished    or  severed  —  Principles  on  which    joint    right    or 


TABLE    OF    CONTENTS.  IX 

PcKj''  >• 
liability  in  actions  of  tort  determined  —  A  tortious  act  not  an 
entirety  as  to    parties  injured  —  General  and   special  owners  — 
Joint  and  several  liability  for  torts,   -----      20;^ 

CHAPTER  v.—  LEGAL  LIQUIDATIONS  AND  REDUCTIONS. 

Section  1. —  Circuity  of  action. —  A  legal  liquidation  and  extinguish- 
ment of  recipi'ocal  and  connected  causes  of  action  on  which  the 
damages  are  by  law  the  same,  -  -  -  -  -      220 

Section  2. —  Mutual  credit. —  Only  the  net  balance  of  connected  ac- 
counts recoverable,        -  -  -  -  -  -  -      23<: 

Section  3. — Mitigation  op  damages. —  First,  by  matters  which  tend 
to  excuse  or  justify,  but  are  not  a  complete  justification  —  Second, 
acts  and  negligences  of  plaintiff  which  increased  the  injury  — 
Third,  acts  of  either  party,  or  of  third  persons,  reducing  or  par- 
tially compensating  the  original  or  prima  facie  injury  —  Fourth, 
by  fuller  proof  the  res  gestse  —  Fifth,  payments  before  or  after 
suit, 226 

Section  4. —  Recoupment  and  Counterclaim. —  Definition  and  historj' 
of  recoupment  —  The  defense  founded  on  the  natural  equitj'  that 
connected  demands  should  compensate  each  other,  and  intended  to 
prevent  circuity  of  action  —  It  is  not  a  defense  of  failure  of  consid- 
eration—  Summary  of  the  distinguishing  features  of  recoupment  — 
Defendant's  demand  must  be  a  valid  cause  of  action  —  It  must 
arise  from  the  same  contract  or  transaction  as  the  plaintiff's  case  — 
Not  necessaiy  that  demand  on  either  side  be  liquidated,  or  that 
both  be  of  the  same  nature  —  Recoupment  available  only  as  a  de- 
fense, surplus  not  recoverable  except  by  statute  —  Defendant  lias 
election  to  recoup  or  bring  separate  action  —  When  defendant 
seeks  to  recoup  he  is  an  actor,  has  the  burden  of  proof,  and  same 
measux'e  of  damages  as  if  he  sued  in  separate  action  —  Must  give 
notice  of  recoupment  in  pleading,      -----      opl 

Section  5. —  Marshaling  and  distribution. —  Definitions  —  Where 
incumbered  property  is  sold  in  parcels  to  different  persons  at  dif- 
ferent dates  —  When  sold  suljject  to  incumbrance  —  Effect  of  cred- 
itor releasing  part  —  Rights  where  one  creditor  may  re-sort  to  two 
funds,  and  another  creditor  to  only  one  of  them  —  Same  when  the 
funds  belong  to  two  separate  debtors  —  Principal  on  which  prior- 
ity determined  between  creditors,      -----      30iJ 

Section  6. —  Set-off  of  judgments. —  Courts  have  inherent  power  to 
direct  such  set-off  —  When  it  will  or  will  not  be  granted  —  Tlie 
interests  of  the  real  parties  considered  —  Cannot  be  granted  until 
judgment  rendered  —  An  assignee  must  make  absolute  purchase  — 
Set-off  does  not  depend  on  the  nature  of  the  cause  for  which 
judgment  rendered  —  Attorneys' lien,  -  -  -  -      31! 


X  TABLE    OF    CONTENTS. 

Pages. 
CHAPTER  VI.—  PECUNIARY  REPRESENTATIVE  OF  VALUE. 

Section  1. —  Money,  -_..---      318 

Section  3.— Par  and  bate  of  exchange,       -  -  -  -     339 

CHAPTER    VII.— CONVENTIONAL    LIQUIDATIONS    AND    DIS- 
CHARGES. 

Section  1. —  Payment. — What  it  is;  various  modes  of  making  —  What 
is  not  payment -J  Effect  of  payment  —  Payment  before  a  debt  is 
due  —  Payment  by  legacy  —  By  gift  inter  vivos  —  By  retainer  — 
Payment  in  counterfeit  money,  or  bills  of  broken  banks  —  By  note, 
bill  or  check  —  By  collaterals  collected,  or  lost  by  negligence  of 
creditor  —  Who  may  make  payment  —  To  whom  payment  may  be 
made  —  Pleading  and  evidence  of  payment,       -        -        -  .      345 

Section  3. —  Application  of  payments. —  General  rule  —  By  the  party 
paying  —  By  the  creditor  —  Appropriation  by  the  court  —  Is  made 
by  the  court  on  equitable  principles  —  When  payments  to  be  ap- 
plied pro  rata  —  Application  to  the  oldest  debt  or  item  of  indebt- 
edness —  To  debt  bearing  interest,  and  first  to  interest  —  To  most 
precarious  debt,  -..-...      393 

Section  3. —  Accord  and  satisfaction. —  Definition  —  Payment  of 
part  of  a  debt  will  not  support  agreement  to  discharge  the  whole  — 
Any  other  act  or  promise  which  is  a  new  consideration  will  suf- 
fice —  Composition  with  creditors  —  Compromise  —  Agreement 
must  be  executed  —  Rescission  or  exoneration  before  breach,      -      425 

Section  4. —  Release. —  Definition  —  Differs  from  accord  and  satis- 
faction —  Effect  when  executed  by  or  to  one  of  several  claiming 
or  liable  —  What  acts  will  operate  as  a  release  —  Covenant  not  to 
sue, 433 

Section  5. —  Tender. —  On  what  demands  tender  may  be  made  — 
When  it  may  be  made  —  In  what  money  —  By  whom  —  To  whom  — 
It  must  be  sufficient  in  amount  —  How  to  be  made  —  Must  be  un- 
conditional—  Effect  of  tender  accepted  —  Must  be  kept  good  — 
Must  be  pleaded  and  money  paid  into  court  —  Effect  of  plea  of 
tender  —  Effect  of  tender  after  money  paid  into  court  —  Effect  of 
sufficient  tender  on  collateral  securities  —  Paying  money  into  court,  443 

Section  6. —  Stipulated  damages. —  Contracts  to  liquidate  damages 
valid  —  Damages  can  be  liquidated  only  on  valid  contracts  —  Modes 
of  liquidating  damages  —  Alternative  contracts  —  Liquidated  dam- 
ages as  distinguished  from  penalty  —  Evidence  and  effect  of  in- 
tention to  liquidate  damages  —  Stipulated  sum  where  damages 
otherwise  certain  or  uncertain  —  Contracts  for  payment  of 
money  —  Large  sum  to  secure  payment  of  a  snialler  —  Stipulation 
where  damages  certain  and  easily  proved  —  Stipulation  favorably 


TABLE   OF   CONTENTS.  XI 

Pages. 
considered  where  damages  uncertain  —  Wliere  gross  sum  fixed  for 
any  partial  breach  or  total  breach  —  Effect  of  part  performance 
accepted  where  damages  liquidated  —  Liquidated  damages  are  in 
lieu  of  performance,    -------      475 

CHAPTER  VIII.— INTEREST. 

Section  1. —  General  promise  to  pay  money  "with  interest." — It 
is  liberally  construed  —  Law  or  custom  supplies  the  rate  —  Legal 
or  stipulated  rate  applies  from  date  —  Whether  the  same  rate  will 
continue  after  the  debt  is  due,  -----      539 

Section  2. —  Agreements  for  interest,  "until  paid." — Agreements 
for  interest  from  date  until  the  debt  is  paid  —  Agreements  for  a 
different  rate  after  the  debt  is  due,    -----      553 

Section  3. — Agreements  for  more  than  legal  rate  before  ma- 
TcniTY. —  Effect  of  usury  found  —  Who  may  take  advantage  of 
usury — When  contracts  not  declared  void  for  usury  —  (Computa- 
tion under  usury  statutes,        ------      561 

Section  4. — Agreements  for  more  than  the  legal  rate  after 
maturity. —  Not  usury,  but  penalty — Wlien  debtor  relieved  in 
Illinois,    ---------      576 

Section  5.— Interest  as  compensation. —  By  tacit  agreement  on  ac- 
counts—  Quantum  meruit  claim  for  —  On  money  lent  and  on 
money  paid  —  Between  vendor  and  purchaser  —  Interest  allowed 
from  time  when  money  ought  to  be  paid  —  Not  on  statutory  penal- 
ties —  When  on  the  penalty  of  a  bond  —  Allowed  on  judgments  — 
Lost  on  revival  of  judgment  by  scire  facias  —  AUowed  on  sums 
due  for  rent  —  On  annuities  and  legacies  —  Not  allowed  on  unliqui- 
dated demands  —  When  allowed  on  money  had  and  received  — 
When  allowed  on  accounts  —  When  demand  of  payment  neces- 
sary—  When  allowed  against  agents  and  trustees  —  Allowed  on 
moneys  obtained  by  extortion  or  fraud  —  Interest  on  damages  in 
actions  for  tort,  .-...-.      58] 

Section  6. — The  law  of  wbat  place  and  time  governs. —  Law 
of  place  of  contract  —  As  to  notes  and  bills  —  Bonds  to  U.  S.  to 
account  for  public  moneys  —  Between  parties  doing  business  in 
different  states  —  Where  the  question  of  usury  is  involved  —  The 
law  of  what  place  governs  rate  as  damages  —  Allegation  and  proof 
of  foreign  law  —  Effect  of  change  in  the  law  of  the  place  of  con- 
tract,      ------_>.      630 

Section  7.— Interest  as  an  incident  to  the  principal. —  Interest 
due  by  agreement  a  debt  —  Interest  as  damages  strictly  accessory 
to  the  principal,  -------      675 

Section  8.—  Interest  upon  interest.—  Compound  interest  —  In- 
stances of  interest  upon  interest  —  Interest  on  periodical  instal- 


Xll  TABLE   OF   CONTENTS. 

Pages. 
ments  of  interest  —  Separate  written  agreements  for  interest  — 
Computation;  application  and  effect  of  partial  payments,  ■:      678 

Section  9. — Suspension  op  interest. —  Where  payments  prevented 
by  judicial  process  —  By  war  —  By  tender,  -  -  -      691 

Section  10. —  Pleading. —  How  interest  must  be  claimed  in  pleading,  705 

Section  11. —  Interest  during  proceedings  to  collect  a  debt. — 
Interest  on  verdict  before  judgment  —  On  judgments  pending 
review  in  appellate  court,        ------      708 

CHAPTER  IX.—  EXEMPLARY  DAMAGES. 

Compensation,  though  given  in  the  absence  of  culpable  motive,  will  be 
increased  when  wrong  done  with  bad  motive  —  Exemplary,  puni- 
tive or  punitory  and  vindictive  damages,  or  smart  money;  diver- 
sity of  opinion  thereon;  what  they  are;  when  allowed,  and  for 
what  —  In  some  states  confined  to  lil)eral  compensation  for  aggra- 
vated injury  —  Difference  when  given  for  compensation,  and  when 
for  that  and  punishment  —  Diversity  of  opinion  when  the  wrong 
punishable  as  a  criminal  offense  —  What  may  be  j^roved  to  en- 
hance or  mitigate  such  damages  —  Persons  liable;  master  for  act 
of  the  servant,  -  -  -  -  -  -  -  -716 

CHAPTER  X.— PLEADING  AND  PROCEDURE. 

Section  1.— Pleading.— Plaintiff  must  state  a  case  which  entitles 
him  to  damages  —  The  ad  damnum  —  Demand  of  damages  in  a 
complaint  under  the  code  —  Effect  of  not  answering  allegations  of 
damage  —  Ad  damnum  limits  plaintiff's  recovery  —  What  prova- 
ble under  general  allegation  of  damage  —  Special  damage  must 
be  alleged  —  Illustrations  —  Not  necessary  to  allege  matter  of  ag- 
gravation; if  alleged,  not  traversable  —  Not  necessary  to  itemize 
damages  in  pleading  —  Statutory  damages  must  be  specially 
claimed  and  alleged,    -------      7r)» 

Section  3.— Assessment  of  damages.— Writ  of  inquiry  — When 
damages  may  be  assessed  without  a  jury  —  What  a  default  or  de- 
murrer admits  —  Defendant  may  offer  evidence  —  What  he  may 
show  for  reduction  of  damages  —  Not  allowed  to  disprove  plaint- 
iff's cause  of  action  —  Jury  tam  quam  —  Verdict  on  plea  in  abate- 
ment—  When  new  jury  may  be  called  to  assess  damages  — 
Correction  of  error  in  assessment,     -  -  -  -  -      771 

Section  3.—  Paying  money  into  court.—  Admits  the  cause  of  action 
to  amount  paid  in  —  Is  a  payment  pro  tanto.  and  cannot  be  taken 
out  by  defendant  —  Pajanent  to  plaintiff  after  suit  brought  may 
be  proved  to  reduce  damages  —  Full  payment  received  will  defeat 
the  action,  ----._.-7Si 


TABLE  OF   CONTENTS.  XUl 

Pages. 

Section  4. —  Evidence. —  Evidence  must  be  adapted  to  damages 
claimed  —  Burden  of  proof  —  Intendments  against  defendant  for 
holding  back  evidence  —  Same  as  to  plaintiff  —  Plain tifif  must 
prove  pecuniary  items  —  When  opinions  may  be  given  in  evi- 
dence—  Upon  subjects  of  common  experience  and  observation  — 
Instances  of  their  admission  and  rejection  —  Not  admissible  as  to 
amount  of  damages  —  Proof  of  values  —  Latitude  allowed  to  prove 
value  at  required  place  and  time  —  By  opinion  of  witnesses  —  By 
actual  sales  —  By  elements  of  value  —  Proof  of  the  value  of  dogs  — 
Witnesses  giving  opinions  may  be  asked  their  grounds,    -  -      783 

Section  5. — Verdict  and  judgment. —  Deliberations  of  the  jury  — 
Recording  and  amending  verdicts  —  Excessive  or  insufficient  ver- 
dicts—  Verdicts  must  be  certain  —  General  verdict  where  there  are 
several  counts  —  Double  or  treble  damages  —  Judgment  —  It  must 
follow  the  verdict  —  It  must  be  certain,        -  -  -  -      803 

Section  6. —  Restitution  after  reversal  op  judgment. —  May  be  by 
suit  or  by  order  or  writ  of  restitution,  -  -  -  -      830 


TABLE  OF  CASES  CITED. 


Pages. 

Abbot  V,  Chapman,  - 

-     258,  393 

Abbott  V.  Allen, 

-    290 

V,  Banfield, 

-    468 

V.  McFie,     - 

-      64 

V.  Wilmot,  - 

-    430 

Abell  V.  Munson, 

-    798 

Abercrombrie  v.  Owings,          -  277 

Aberdeen  v.  Blackniar,     -        -  135 

Able  V.  McMurray,    -        -    636,  666 

Abrams  v.  Kounts,    -        -        -  505 

V.  Musgrave,        .        -        -  375 

Acker  v.  Phoenix.      -        -        -  429 

Ackerinan  v.  Ackerman,          -  317 

V.  Emott,     -        -        -        -  680 

Ackerson  v.  Erie  R.  R.  Co.,      -  755 

Acton  V.  Blandell,      -         -        -  4 

Adains  v.  Adams,      -        -        -  609 

V.  Bank  of  Louisiana,        -  403 

V.  Barnes,    -        -        -        -  353 

V.  Barry,      -        -        -     763,  765 

V.  Beach,      -        -        -        -  599 

T.  Blodgett,         -        -        -  169 

V.  Cordis,     -        -        -     343,  693 

V.  Drake,     -        -        -        -  353 

V.  Emerson,         ...  209 

V.  Fort  Plain  Bank,    -        -  612 

V.  Freeman,         -        -        -  211 

V.  Gardner,          ...  763 

V.  Hall,         -        -        -        -  215 

V.  Hastings,         ...  531 

V.  Helm,       -        -        -        .  465 

V.  Hill,          -        -        -        -  283 

V.  Kearney,         ...  387 

V.  Kelly,      -        -        -        -  67 

V.  Lancashire  &  Yorkshire 

RV  Co.,    -        -        -         43.  70 

V,  McMillan,        -        -        -  760 

V.  Nichols,   -        -        -        -  433 

V.  Palmer,    -        -        -        .  707 

V.  Rivers,     ....  770 

V.  Robertson,       ...  655 

V.  AVaggoner,       ...  253 

V.  Wagner,  -        -        -        -  229 

V.  Wav,        ....  550 

V.  Wilds,      ....  164 

V.  Wyhe,      -        -        -        -  277 

Adams  Express  Co.  v.  Egbert,  124 

V.  Milton,     -        -        -        .  615 

Addams  v.  Hefferuan,       -        -  609 


Pages. 
Addison  v.  Williamson,  -  -  804 
Adkins  v.  Ware,  ...  628 
Adlem  v.  Gove,  ...    812 

Adriance  v.  Brooks,  ...  584 
^tna  Ins.  Co.  v,  Johnson,  -  477 
Agnew  V.  Johnson,  -  -  763,  765 
Agricultural   National  Bank  v. 

Sheffield,  -  -  .  -  643 
Aguirre  v.  Packard.  -  -  667 
Ah  Thaie  v.  Quan  Wan,  -     142 

Aiken  v.  Peay.  -        -     588,  589 

Ainsworth  v.  Allen,  -        -     206 

V.  Bowen,  -  r  -  281,  415 
Akertz  v.  Vilas,  -  -  -  290 
Albee  v,  Webster,  .  -  -  164 
Albert  v.  Bleeker  St.  etc.  R.  R. 

Co., 100 

Alcott  v.  Davidson,  -        -        -    ai6 

Alder  v.  Keighley,    -        -       79,  226 

Alderman  v.  French.         -        -     234 

Aldrich  v.  Cheshire  R.  R.  Co.,     191 

V.  Cooper,    -        -        -        -    303 

V.  Goodell,  -        -        -        -    382 

V.  Lyman,   -        -        -        -    820 

V.  Palmer,   -        -        -        -    810 

V.  Press  Printing  Co. ,        -    750 

V.  Reynolds,         -        -        .     373 

Alexander  v.  Byers,  -        -    359 

V.  Calcord,  -        -        -        -    143 

V.  Jacoby,   -        -        -     142,  793 

V.  Rogers,    -        .        -        -    339 

V.  Thomas,  -        -        -    811 

V.  Troutman,      ...    556 

Alexandrie  v.  Saloy,         -        -    468 

Alfonso  V.  United  States,         -    786 

Alfred  v.  Baker,        -        -        -    373 

V.  Farrow,  ....    821 

AUaback  v.  Utt,        -        -        -    7  ^i 

Allaire  v.  Whitney,  -        -  7,  13,  16. 

278 

Allaire  Works  v,  Guion,   -     280,  297 

Allegheny  R.  R.  Co,  v.  Casey,      349 

Allen  V.  AdJington,  -        -        .        6 

V.  Atkinson,         _        .        .     160 

V.  Brazier,  -        -        -     506,  508 

V.  Brown,    ....    419 

V.  Carman,  -        -        .        -    34S 

V.  Craig,       ....     825 

V.  Crofoot,  -.--"> 


XVI 


TABLE   OF    CASES   CITED. 


.Ulen  V.  Culver,     398,  399,  405,  411* 

414,  419 

V.  Furbish,  -        -        -  -    279 

V.  Hitch,      -        -        -  -    767 

V.  Hooker,  -        -        -  -    279 

V.  Jones,      -        -        -  -    401 

V.  Kemble,  -        -        -  -    635 

V.  Kimball,          -      399.  405,  406 

V.  McKibben,      -      245,  280,  282 

V.  Merchants'  Bank,  -  -    635 

V.  Robinson,         .        .  -     283 

V.  Shackeltou,     -        -  -    277 

V.  Smith,     -        -        -  -     762 

V.  Suydam,          -         7.  131,  246 
Allender  v.  C.  R.  I.  &  P.  R.  R. 

Co.,       -        -        -        -  148,  1.54 

Alley  V.  Adams,        -        -  -     164 

Allies  V.  Probyn,        _        -  -    433 

AUis  V.  Billing,          -        -  -    430 

V.  Nanson,  -        -        -  -     770 

AUison  V.  Chandler.    17,  96,  121.  122, 

163,  724,  770.  784 

V.  People,     -        -        -  -    804 

Allsop  V.  Allsop,        -        -  -      67 

Ally  V.  Rogers,            -        -  372,  375 

Almshouse  v.  Ramsey,      -  -    342 

Alof  V.  Scrimshaw,   -        -  -    441 

Alston  V.  Brashears,           -  -    568 

V.  Contee,    -        -        -  -    420 

V.  Herring,           -        -  -    224 

V.  Huggins,          .        -  -    763 

Althorf  V.  Wolfe,      -        -  -    243 

Althouse  V.  Alvard,           -  -    801 

Alton  V.  Bragg,         -        -  -    598 

Alves  V.  Hodgson,      -        .  -    631 

Amar  v.  Longstreth,         -  -    717 

American      Bible      Society  v. 

Wells,           -        -        -  -    677 

American      Print      Works  v, 

Lawrence,    -        -        -  -        5 

Ames  V.  Bates,  -        -        -  311,314 
V.  Mississippi  Boom  Co.,     -    164 

Amiable  Nancy,  The,        -  -    755 

Ammermann  v.  Jennings,  -    302 

Amononett  v.  Harris,        -  -    823 

Amory  v.  McGregor,         -  -    617 

Amos  V.  Heatherly,           -  -    623 

Amoskeag      Manuf.       Co.  v. 

Goodale,       -        -       -  -      12 

Ancrum  v.  Stone,      -        -  -    614 

Anderson  v.  Georgia,        -  -    623 

Y.  Green,      -        -        -  -    809 

V.  Levan,     -        -        -  -    440 

V.  Mason,     -        -        -  -    403 

V.  May,        -        -        -  -    318 

V.  Simple,    -        -        -  -    822 

Andrew  v.  Hancock,        -  -    255 

Andrews  v.  Askey,    -        -  -    746 

V.  Banghay,         .        _  .    429 

V.  Blake,      -        -        -  -    772 

V.  Creditors,        -       -  -    631 


Pages. 
Andrews    v.   Glenville  Woolen 

Co., 142 

V.  Hammond,      -        -        .    77.5 

V.  Herriot,  -        -        -        -    631 

V.  Jones,       .        -        -        -     150 

V.  Keeler,     .        -        -        -    543 

V.  Mainlaws.        -        -        .     760 

V.  Pond,     631,  632,  645,  654,  657 

V.  Russell,    -        -        -        -    674 

V.  Stone,      ...        -    703 

V.  Van  Dusen,     -        -        -    232 

Angel  V.  Felton,        -        -        -    375 

Angerstein  v.  Martin,        -        -    677 

Angus  V.  Rudin,        -        -        -    769 

Anketel  v.  Converse,         -        -    422 

Anna  Maria,  The,      -        -        -     111 

Annett  v.  Terry,        -        -        -    134 

Annis  v.  Upton,         -        -     301,  761 

Anonymous,     6,  325,  334,  449,   451. 

533,  605,  617,  639,  687,  696,  758 

Ansett  V.  Marshall,   -        -        -      58 

Anson  v.  Dwight,      -        -        -    801 

Antarctic,  The,  -        -        -    423 

Antelope,  The,  -        -        -        -    658 

Anthony  v.  GUbert,  -        -    739 

V.  Slaid,       -        -        -        -      55 

V.  Stevens,  -        -    .   -    234 

Apgar  v.  Hiler,  .        _        -    143 

Appel  v.  Waterman,  -        -    328 

Applegate  v.  Jacoby,        -        -    505 

Appledorn  v.  Steeler,        -        -    387 

Appleton  V.  Donaldson,    -        -    456 

Arcombel  v.  Wiseman,     -        -    142 

Archer  v.  Bogue,       .        .        .    204 

v.  Dunn,      -        -        -        -    631 

V.  Williams,         -        -        -        7 

Archibald  v.  Argall,  -        -    376 

V.  Wilson,   -        -        -     505,  509 

Arden  v.  Goodacre,  -      238,  246,  249 

Armistead  v.  Brooks,        -        -    407 

Armitage  v.  Haley,  -        -        -    811 

v.  Pulver,    -        -        -        -     134 

Armory  v.  Delamire,         -        -     784 

Armstrong  v.  Campbell,  -        -    625 

V.  Dubois,    -        -        -        -    212 

V.  Hayward,        -        -        -    437 

V,  McAlpin,         -        -        -     164 

V.  Percy,      -        -        -        -    140 

V.  Smith,     -        -        -        -    795 

Arnold  v.  Camp,        .        -        -    428 

V.  Johnson,  -        -     406,  408 

v.  Park,       -        -     427,  428,  431 

V.  Potter,     -        -      644,  646,  659 

V.  Prole,       -        -        -        -    409 

Arnot  V.  Post,   -        -        -        -    471 

Arnott  V.  Redfern,    -     549,  597,  638 

Arrington  v.  Gee,      -        -     632,  640 

V.  Mobile,  etc.  R.  R.  Co.,   -    827 

Arrott  V.  Brown,       -        -        -    784 

Arrowsmith  v.  Van  Arsdale,  -    831 

Artisans'  Bank  v.  Park  Bank,      635 


TABLE   OF  CASES   CITED. 


XVU 


Pages. 

Pages. 

Ash  V.  Marlow, 

-    747 

Avery  v.  Fitch,  - 

- 

• 

180,  182 

Ashburn  v.  Poulter, 

444,  703 

V.  Ray, 

- 

- 

237,  230 

Ashburnham  v.  Thompson, 

.      -     636 

Ayer  v.  Hawkins,  '. 

106, 

407, 

408,  409 

Ashby  V.  White,         -     13,  : 

14,  15,  16 

V.  Norwich, 

- 

■ 

-      70 

Ash  croft  V.  Clia\)man, 

-     159 

V.  Tilden,     - 

. 

- 

589,  663 

Ashe  V.  Bassett,         - 

-      76 

Ayei-s  V.  Metcalf, 

. 

. 

-    585 

Ashford  v.  Hand, 

-     179 

V.  Pease, 

- 

. 

-    478 

Ashims  v.  Hearne,    - 

-    287 

Aylesworth  v.  Bro 

wn. 

. 

-    441 

Ashley  v.  Harrison,           -  49,  67,  95 

Aylet  V.  Dodd,  - 

- 

. 

-    403 

V.  Marshall, 

-    276 

Aylett  V.  Jewel, 

. 

. 

-    804 

V.  White,     - 

9 

Ayres  v.  French, 

. 

. 

7 

Askew  V.  Odenheimer, 

784,  785 

V.  Hayes,     - 

. 

. 

-    541 

Association,  etc.  v.  Eagleson,     543, 

v.  Probasco, 

. 

. 

-    674 

671,  673 

Ayrman  v.  Sheldon, 

- 

635,  636 

Astley  V.  Reynolds,  - 

-    453 

V.  Weldon,  481,  485,  489,  493,  498, 

Babcock  v.  DiU, 

. 

- 

-    428 

533,  534 

V.  Price, 

. 

- 

-    279 

Atchison  v.  King, 

-    198 

Babe  v.  Stickney, 

- 

398, 

405,  40G 

Atcliison,  etc.  R.  R.  Co.  v.  Bates,  26 

Backhouse  v.  Patton, 

- 

405,  413 

V.  Stanford, 

-      26 

Backus  V.  Minoi-, 

. 

- 

-    687 

Atkins  T.  Barnstable, 

-     160 

Bacon  v.  Brown, 

. 

.406, 

419,  421 

V.  Mooney, 

-     339 

V.  Dyer, 

- 

- 

-    459 

Atkinson  v.  Atkinson, 

-    350 

v.  Fairman, 

■ 

- 

-    357 

V.  Braybrooke,    - 

-    601 

V.  Smith, 

. 

. 

-    455 

V.  Jones,       -        -        - 

-    597 

Badeau  v.  Mead, 

. 

. 

6 

V.  N.  &  G.  Water-works  Co.,  30, 

Badger,  In  re,    - 

. 

- 

-    607 

41,  43 

Badger  v.  Titconib, 

- 

178, 

179,  180 

V.  Stewart, 

-     373 

Badgett  v.  Broughton, 

- 

-     614 

Atkyns  v.  Kinnier,    -      485, 

,  505,  523 

Badley  v.  Bellamy, 

- 

- 

-    669 

Atlantic,    etc.    R.    R.    Co. 

V. 

v.  Viguss,    - 

- 

- 

-    440 

Caiupbell, 

-    794 

Bagby  v.  Harris, 

- 

- 

-       13 

V.  Dunn,      -        -        - 

750,  755 

Bagg  v.  Jefferson, 

. 

• 

-    315 

Atlantic  &  G.  W.  R.  R.  Co 

.   V. 

Baggett  V.  Beard, 

. 

. 

-    143 

Koblentz,     -        -        - 

604,  605 

Bagley  v.  Homan, 

- 

. 

-    433 

Atlantic    National      Bank 

V. 

V.  Peddie,  489, 

492, 

503, 

505,  506, 

Harris,          ... 

-     628 

533 

Atlee  V.  Backhouse,  - 

-    430 

V.  Smith,     - 

- 

- 

-     119 

Attleborough  v.  Middleborough,  397 

Bagot  V.  Williams, 

180 

,181 

,  183,  186 

Attorney  General  v.  Cape  Fear 

Bailey  v.  Burgen, 

- 

- 

297,  417 

Nav.  Co.      -        -        - 

-    599 

V.  Day, 

- 

- 

-    427 

Atwater  v.  Rodofson, 

-    645 

v.  Dean, 

. 

. 

6,  739 

Attwood  V.  Tajdor,    - 

-    586 

V.  Heald,     - 

. 

. 

-    635 

Atwood  V.  Cornwall, 

359,  360 

V.  Hyde,      - 

. 

232, 

233,  234 

V.  Gillespie, 

-    812 

V.  McClure, 

. 

. 

-    561 

V   Norton,    -        -        - 

-     179 

V.  Porter,     - 

. 

. 

-    423 

Auchmuty  v.  Hurn, 

-     215 

V.  Wynkop, 

- 

- 

-    413 

Auditor  v.  Dugges,  - 

-    599 

Baillie  v.  Kill,    - 

- 

- 

-    245 

Aultman  &  Co.  v.  Hethering- 

Bain  v.  Case, 

. 

- 

-    598 

ton,  -        -        -        - 

293,  297 

V.  Fothergill, 

- 

- 

130,  160 

V.  Jett, 

-    293 

Bainbridge  v.  Wilcocks 

1,  632 

1,  638,  639 

Aurentz  v.  Porter,     - 

-    328 

Baine  v.  Williams, 

. 

415, 

416,  433 

Aurora  v.  West, 

-    684 

Baird  v.  Bland, 

- 

- 

-     621 

Austin  V.  Austin, 

-     160 

V.  Tolliver,  - 

490, 

,  491, 

493,  504 

V.  Cummings, 

-    220 

Bakers  Appeal, 

- 

-    330 

V.  Foster,     -        -        - 

-    273 

Baker  v.  Baker, 

. 

687,  691 

V.  Hall, 

-    435 

V.  Boston,    - 

. 

5 

V.  Hudson  R.  R.  Co., 

-    209 

V.  Callender, 

. 

-    819 

V.  Imus,       -        -        . 

-    633 

V.  Connell,  - 

. 

-    289 

V.  Wilson,    -        -        - 

-    733 

V.  Davis, 

. 

-    255 

Averall  v.  Wade, 

-    303 

V.  Drake, 

. 

-      17 

Avery  v.  Brown, 

265,  277 

V,  Freeman, 

- 

-    238 

Vol.  I  — b 

XVlll 


TABLE   OF   CASES    CITED. 


Pages. 

Baker  v,  Gasque, 

-    451,  473 

V.  Greeu, 

13,  15 

V.  Jewell,     - 

-    207,  436 

V.  Johnson, 

-    191 

V.  Looniis,  - 

-    776 

V.  Martin,    - 

-     136 

V.  Railsbach, 

-    290 

V.  Sanderson, 

-    830 

V.  Scott, 

-    678 

V.  Smith,      - 

-    833 

V.  Stackpole,     399,  406,  410,  411 

V.  Wheeler,  -        -        -     166 

Bakerman  v.  Pooler,         -    455,  457 

Balch,  Ex  parte,        -        -        -    353 

Baldwin  v.  Bennett,  -        -    785 

V.  Munn,      -        -        -     130,  594 

V.  Porter,     -        -        -     238,  241 

V.  Stebbius,  -        -        -    781 

V.  U.  S.  Tel.  Co.,         -        -      70 

V.  Van  Deusen,  -        -        -    865 

V.    Western    R.    R.    Corp., 

763,  766 

Ball  V.  Douglass,        -        -        -     173 

V.  Looniis,    -        -        -        -    213 

V.  Stanley,  -        -     447,  454,  471 

Ballard  v.  Leavitt,     -        -        -    244 

V.  Parcell,    -        -        -        -    837 

Ballingallis  v.  Gloster,      -        -    636 

Ballinger  v.  Edwards,       -        -    563 

Ballou  V.  Farnum,      -        .        -     159 

Balme  v.  Waniburgh,        -        -    460 

Balson  v.  IMarell,        -        -        -    357 

Baltimore,  Tlie,  -        -        -      54 

Baltimore     City     R'y     Co.     v. 

Sewell,  -  -  -  -  711 
Baltimore  F.  Ins.  Co.  v.  Loney,  -  610 
Baltimore,    etc.    R.    R.    Co.    v. 

Blocher,    -        -     750,  757,  758 
V.  Lafferty,  -        -        -    160 

V.  Magruder,        -        -        -    191 
V.  Reaney,  -        -        -        -      25 
V.  State,       -        -        -       -    330 
Baltimore,      etc.      T.      Co.     v. 

Boone,  -        -        -     721,  724 

Baltzell  V,  Hickman,         -        -    763 

Bamford  v.  Harris,    -        -        -    226 

Bancroft  v,  Dumas,  -     399,  408,  409 

V.  Winsfear,        -        _        .    190 

Bandel  v,  Isaac,         .        -        -    565 

Bane  v.  Gridley,        -        -        .    530 

Bangor  Bank  V.  Treat,      -        -    207 

Bank  v.  Bobo,    -        -        -     373,  376 

V.  Brackett,  -        -        -    261 

V.  Burton,    -        -        -        _    336 

V.  DeGraw,  -        .        .    433 

V.  Webb,      -        .        -        _    375 

V.  Woodward,     -        -        .    433 

Bank  of  Brigliton  v.  Smith,      -    599 

Bank  of  Chenango  v.  Osgood,  -    441 

Bank  of  Cliillicotlie  v.  Swayne,  -    569 

Bank  of  Cokunbia  v.  McKenny,  803 


Pages. 
Bank  of   Columbia,    v.   Suther- 
land,        -        -        -       -    783 
Bank  of  England  v,  Newman,  -    371 
Bank    of    Georgia     v.    Lewin, 

645,  650 

Bank  of  Illinois  v,  Brady,         -    633 

Bank  of  Kentucky  v.  Ashley,  -    813 

V.  Vance,     -        -        -        -    305 

Bank    of     Metropolis    v.    Gutt- 

schlick,        -        -        -        -    760 
Bank  of  Montgomery  v.  Reese, 

75,  173 
Bank  of  Muskingum  v.  Carpen- 
ter,        403 

Bank    of    North    America     v. 

Meredith,  -  -  -  -  404 
Bank  of  Old  Dominion  v.  Mc- 
Veigh, -  -  -  -  339 
Bank  of  Orange  v.  Colby,  -  633 
Bank  of  Portland  v.  Brown,  -  424 
Bank  of  Poughkeepsie  v.  Ibbot- 

son, 437 

Bank  of  Prince  Ed.  Isl.  v.  Trum- 
bull,    -        -        -        -     330,  839 
Bank  of  Rome  v.  Curtiss,     246,  347, 

248 
Bank    of    South    Carolina    v. 

Buire,  -        -        -        -    623 

Bank  of  St.  Albans  v.  Farmers' 

&  Mechanics'  Bank,   -     359,  860 
Bank  of  United  States  v.  Bank 

of  Washington,       -        -    831 

V.  Covert,    -        -        -        -    417 

V.  Donally,  -        -        -    631 

V.  McAllister,      -        -        -    399 

V,  Owens,    -        -        -     564,  566 

V.  Peabody,  -        -     380,  383 

V.  United  States,        -        -    635 

Banks  v.  Machen,      -        -        -    638 

Bann  v.  Dalzell,        -        -        -    549 

Banttoon  v.  Smith,   -        -        -     607 

Barber  v.  Lesiter,      -        -  43,  53,  95 

V.  Merriam,         -        -     786,  794 

V.  Rose,        -        -        -     282,  301 

V.  Stackpole,       -        -     898,  410 

Barclay  v.  Kennedy,         -        -    583 

Bard  v.  Yohn,    ...        -    215 

Barden  v.  Crocker,    -        -        -        6 

V.  Fench,     -        -        -     750,  754 

V.  Fitch,       -        -        -        -    213 

Bare  v.  Hoffman,       -        -        -    617 

Barfield  v.  Loughborough,       -    586 

Barhyte  v.  Hughes,  -        -     277,  287 

Baring  v.  Clark,         -        -        -     397 

Barker  v.  Braham,    -        -        -    213 

V.  International  Bank,        -     538 

Barker  v.  T.  &  R.  R.  R.  Co.,     -    160 

Barnard  v.  Bartholomew,         -    615 

V.  Cushman,        -        -        -    470 

V.  Darling,  .        -        -    434 

V.  Graves,    -        -        -        -    374 


TABLE   OF   CASES   CITED. 


xiy 


Pages. 

Barnard  v.  Harrington,     -        -        8 

V.  Poor,        -        77,  143,  733,  743 

V.  Whiting,  -        -     808,  820 

Barnes'  Appeal,         -        -        -    303 

Barnes  v.  Burt,  -        -        -    770 

V,  Chapin,  -        -        -        -      54 

V.  Hurd,       -        -        -        -    820 

V.  Martin,    :        -        -        -    745 

V.  McCrate,         ...        5 

V.  Newconib,       .        -        -    633 

V,  Quigley,  -        -        -    771 

V.  Racster,  _        -        -    30;^ 

V.  Ward,      ....      70 

V.  Whitaker,        ...    659 

Barnett  v.  Luther,    .        -        -      14 

V.  Smith,     -        -        .     279,  375 

V.  Thompson,      ...     164 

Bai'ney  v.  Dewey,     ...     147 

V.  Saunders,        ...    633 

Barnuni  v.  Van  Dusen,     .        -      24 

Barradoile  v.  Branton,      -       83,  134 

Barrell  v.  Jov,   -        -        .        .     593 

Barrelett  v.  Bellyard,         .        -    340 

Barrett  v.  Lewis,       -        -     403,  411 

V.  Pasumpsit  T.  Co.,  -        -    477 

Barrilli  v.  O'Connor,  -        -    433 

Barringer  v.  King,    -        .     603,  663 

Barron  v.  Morrison,  .        -    605 

V.  Vandvert,       -        .        .438 

Barrow  v.  Arnaud,   ...    151 

V.  Rea,         ....    615 

V.  Rhinelander,  -        -     383,  678 

Barrows  v.  Cook,      -        .        -    403 

Barth  v.  Burt,    -        -        -     278,  395 

V.  Merritt,    -        -        .        -    811 

Bartholomew  v.  Low,        -        -    433 

Bartlett  v.  Blanton,  -     595,  603,  838 

V.  Fai-rington,      -        .        -    386 

V.  Hamilton,        ...    164 

V.  Holmes,  -        .        .     268,  376 

V.  Hooksett,        -        -        -      70 

V.  Kidder,    ....    210 

V.  MarshaU,         .        .        .618 

V.  Rogers,    ....    439 

Barton  v.  Fisk,  -        -        -        .143 

V.  Holmes,  .        -        .     803,  804 

Barry  v.  Inglis,  -        .     237,  330 

V.  Rogers,     ...        -    205 

Bar  well  v,  Kensey,    .        -        -    179 

Bascom  v.  Manning,  .        .    301 

Basge  V.  Ambrose,     -        -     480,  514 

Basler  v.  Nichols,       -        -        -     177 

Basley  v.  Chesapeake  Ins.  Co.,     805 

Bass  V.  Chicago,  etc.  R.  R.  Co.,  740, 

755,  757,  811 

Batchelder  v.  Bartholomew,  345,  260 

V.  Sturges,   -        .        -        -      76 

Bateman  v.  Daniels,  .        -    430 

V.  Lj'all,       ...        -      66 

Bates  V.  Courtwright,        -        -    243 

V.  Pilling,     .        -        -        -    213 


Pages. 

Bates  V.  Rosecrans,   -        -        .    375 

V.  Quattlebaum,  -        -     179 

Batterman  v.  Pierce,      272,  283,  293 

Battigrew  v.  Booker,  -        -    433 

Battishillv  Reed,      -        .        .    199 

Bauer  v.  Gottmanhauser,         .    731 

Baum  V.  Moon,  ...    687 

Bawder  v.  Bawder,   ...    619 

Baxendalev.  London,  etc.  R.  R.        , 

Co.,       .        .        -      136,  139,  145 

Baxter  v.  Ryers,        ...    594 

V.  Wales,     -        .        .        -    491 

V.  Wenooski  Co.,        .        -        6 

Bayard  v.  Shunk,      .     364,  366,  371 

V.  Smith,     -        .        .        .770 

Bayle  v.  Zacharie,     -        -        .    633 

Bayley  v.  French,      ...    350 

V.  Peddie, 498 

V.  Wincoop,        -        -        .398 

Baylis  v.  Usher,         -        .        -        7 

Bavuard  v.  Harrity,  -    134,  135 

Beach  v.  Callis,  -        -        -    589 

V.  Crain,      .        -        -        -     198 

V.  Endress,  .        -    439,  440 

V.  Forsyth,  ....     164* 

V.  Fulton  Bank,  -        -    563 

V.  Hotchkiss,       -        -        -     307 

V.  Purmeter,        -        -        -      36 

V.  Rauney,  -        -        -      48 

V.  Sclimeiltz,       ...     164 

Beadle  v.  Schoals,     -        -        -    814 

Beal  V.  Crafton,         -        -        -    677 

V.  Finch,      .        -        .        -     834 

V.  Hayes,     -        -     475,  481,  498 

BeaU  V.  Pearre,  -        -    299,  301 

V.  Silver,     -        -        -        -    600 

Beals  V.  Guernsey,    -        -        -    629 

V.  Supervisors,    -        -        -    599 

Bealy  v.  Shaw,  -        -        -        -      10 

Beam  v.  Barnum,      -        -        -    377 

v.  Hayden,  -        -        -     -  -    837 

Bean  v.  Brown,         ...    408 

V.  Chapman,        -        -    545,  696 

V.  Wells,      -        ...      63 

Beard  v.  Brooklyn,   ...    403 

V.  Kirk,        ....    808 

V.  Van  Wickle,  -        -        .    775 

Efeardmore  v.  Carrington,        -    736 

Beardslee  v.  Horton,      531,  615,  618 

Beardsley  v.  Davis,  -        -        .    437 

v.  Majmard,         ...    231 

Beardsley  Scythe  Co.  v.  Foster,     713 

Bearson  v.  Smith,      -        .        -    490 

Beatty  v.  Norris,        -        -    405,  413 

Beaubien  v.  Cicotte,  -        -    789 

Beaulien  v.  Parsons,  -        .810 

Beaumont  v.  Greathead,  -        .        9 

Beavers  v.  Smith,      .        -        -    609 

Becker  v.  Boon,         ...    468 

V.  Dupree,  .        -        -    721,  749 

Beckford  v.  Tobin,    -        •        -    608 


XX 


TABLE   OF   CASES    CITED. 


Pages. 

Beckley  v.  Munson,  -        -        -     143 

Beckman  v.  Drake,  -        -        -    525 

V.  Manlove,         -        -        -    274 

Beckwitli  v.  Carleton,       -        -    816 

V.  Griswold,         .        -        -     199 

V,  Shordike,        -        -        -    769 

V.  Trustees,        548,  550,  554,  673 

Bedell  v.  Powell,        -        -        -    763 

Bedford  v.  Deakin,    -        -        -    428 

V.  Shilling,  -        -        -        -    670 

Bee  Printing  Co.  v.  Heckborne,   280 

Beebe  v.  Knapp,        -        -        -    451 

V.  Miller,      -        -        -        -    206 

V.  Newark,  -        -        -     604,  605 

Beecher  v.  Denniston,      -     790,  795 

V.  Derby  Bridge  Co.,  -        -    743 

Beecker  v.  Vroom,   -        -        -    264 

Beedle  v.  Grant,        -        -        -    600 

Beekman  v.  Bemas,  -        -        -    808 

V.  Clialmers,        -        .        -    826 

Beeson  v.  Beeson,     -        -        -    609 

V.  Elliott,     -        -        -        -    593 

Begg  V.  Whittier,     -        -        -    772 

Belmley  v.  Hatch,      -        -        -    457 

Behrens  v.  McKenzie,      -        -    142 

Belknap  v.  Godfrey,         -        -    261 

V.  Raih-oad,         -      742,  744,  745 

Bell  V.  Alexander,    -        -        -    383 

V.  Bruen,     -        -        -        -    632 

V.  Cunningham,  -     131,  174 

V.  Logan,     -        -        -     587,  622 

V.  Loomis,  -        -        -        -    211 

V.  Mayor,  etc.,     -        -     543,  546 

V.  Midland  R'y  Co.,     -        -    721 

V.  Morrisoxi,         -        -        -    746 

V.  Reed,        -        -        -        -      60 

Bells  V.  Porter,  -        -        -    379 

Belshaw  v.  Bush,  384,  385,  387,  428, 

429 
Bender  v.  Fromberger,  -  -  128 
Bendernagle  v.  Cocks,  -  -  178 
Bend  it  v.  Annesley,  -     261,  782 

Benedict  v.  Grit,       -        -        -        5 
V.  Harlow,  -        -        -     317,  320 
Benham  v.  Dunbar,  -        -        -    798 
Bejamin  v.  Benjamin,      -     311,  316 
V.  Wheeler,  -        -        -        5 

Benkard  v.  Babcock,  297,  459,  463, 

465,  599 

Bennen  v.  Clements,        -        -    342 

Bennett  v.  Bayes,     -        -        -    704 

V.  Buchanan,      -        -        -    373 

V.  Hood,      -        -        -        -    184 

V.  Jenkins,  -        -        -     140,  594 

V.  Lewis,      -        -        -        -    400 

V.  Lockwood,  47,  57,  98,  100,  239 

V.  Odom,      -        -        -     473,  782 

V.  Thompson,      -        -        -    160 

Benny  v.  Rhodes,      -        -        -    413 

Benson  v.  McFadden,       -        -    788 

V.  Walden,  etc.  Gas  L.  Co.,     97 


Bent  V.  Lauve, 
Bentley  v.  Reynolds, 
Benton  v.  Dale, 

V.  Fay, 
Benziger  v.  Miller,    - 
Berghaus  v.  Alter,    - 


Pages. 

-  '633 

-  67 

-  827 
109,  151 
134,  238 

-  423 


Bergheim  v.  Iron  Co.,      -  505,  509 

Bernan  v.  New  York,       -  -    419 

Berrien  v.  Mayor,  etc.,     -  -    407 

V.  Wright,  -        -        -  -     045 

Berrinkott  v.  Traphagen,  -    500 

Beriy  v.  Anderson,   -        -  -    828 

V.  Bates,       _        .        -  -    443 

V.  Diamond,        -        -  -    280 

V.  Dwinell,  -        -      132,  795,  790 

V.  Gillis,       -        -        -  439,  441 

V.  Harris,     -        -        -  -    203 

V.  Kelley,     -        -        -  -    210 

V.  Mutual  Ins.  Co.,     -  -    310 

V  Powell,    -        -        -  -    307 

V.  Vreeland,        -        -  -    810 

V.  Wisdom,  -     489,  525,  528 

Berthold  v   Reyburn,        -  -    466 

Bertrand  v.  Byrd,      -        -  -    160 

Besher  v.  Richards,  -        -  -    155 

Besser  v.  Hawthorn,          -  -    550 

Beston  V.  Butts,         -        _  _    245 

Better  v.  Farewell,    -        -  -    687 

Betterbee  v.  Davis,    -        -  -    453 

Betts  V.  Burch,  -        -        -  -    476 

V.  Jackson,          _        -  -    784 

V.  Lee,          -        -        -  165,  166 

Betz  V.  Habner,         -        -  -    417 

Beula  V.  Curry,          ■        -  -    383 

Bevan,  Ex  parte,       -        -  -    586 

Bevans  v.  Rees,          -        -  453,  459 

Beveridge  v.  Welch,          -  -    734 

V.  West  Chicago  Park  Com.,  604 

Bevin  v.  Linguard,    -        -  -    825 

Bexby  v.  Dunlap,       -        -  -      73 

Beymer  v.   McBride,   148,  151,  155, 

238 
Bibend  v.  Liverpool  Ins.  Co.,  -    604 

Bicknell  V.  Waterman,     -  173,614 

Bidell  V.  Janney,        .        -  -    623 
Bierbauer  v.  New  York,  etc.  R. 

R.  Co.,          -        -        -  -    811 

Bigelow  v.  Doolittle,         -  629,  813 

V.  Reed,       -        -        -  -      71 

Bigler  v.  Waller,        -        -  326,  698 

Bigony  v.  Tyson,       -        -  505,  512 

Biggs  V.  Benger,        _        -  -    823 

V.  D'Aguir,           -        -  -    724 

V.  Dwight,  -        .        -  -    408 

Billing  V.  Thraxton,           -  -    287 

Billingsby  v.  Billingsby,  -  -    619 

Billingsley  v.  Cahoon,       -  -    560 

V.  Dean,       -        -        -  -    494 

Billiot  V.  Robinson,  -        -  -    449 

Binford  v.  Alston,      -        -  -    350 

Bingham  v.  Allport,          -  -    450 


TABLE   OF   CASES   CITED. 


XXI 


Pages. 

Bingliam  v.  Garnhault,     -        -    280 

V.  Richardson,     -        -        -    505 

Binsse  v.  Wood,        -        -        -    134 

Bircli  V.  Tibbatt,        -        -        -    409 

Birchard  v.  Booth,  198,  229,  230,  740, 

745,  703,  804,  811 

Bird  V.  Holhrook,      -        -        .      28 

V.  Lobdell,  -        -        -        -    421 

Birdley  v.  Eden,        -        -        -    696 

Bmlsall  V.  Twenty-third  St.  R'y 

Co., 490 

Birdsey  v.  Butterfield,      -        -    277 

Bisby  V.  Shaw,  -        -        -     233,  236 

Bishop  V.  Baker,        -        -        -    769 

V.  Garcia,     -        -        -        -    317 

V.  Lucas,      -        -        -        -    260 

V.  Perkins,  -        -        -     377,  434 

V.  Price,       -        -        -     280,  282 

V.  Williamson,    -        -        -      31 

Bishop  Hill  Colony  v.  Egerton,  580, 

596 

Bissell  V.  Elmore,      -        -        -        6 

V.  Hopkins,  -        -     629,  709 

V.  Marine  Co.,      -        -        -     679 

Bixby  V.  Dunlop,       -        -     730,  738 

Black  V.  Camden  &  A.  R.  R.  & 

T.  Co.,       -        -        -        -    639 

V.  Dor  man,  .        -        -    349 

V.  Goodman,        -        .        -    628 

V.  Lusk,       -        -        .        -    326 

V.  Morse,      ...        -     303 

V.  Reybold,  -        -     582,  617 

V.  Schooler,         ...    403 

V.  Smith,     -        -        -     453,  456 

T.  Ward.      -        -        -     322,  333 

Blackburn,  Ex-  parte,        -        -    364 

Blackburn  v.  Stupart,        -        -    350 

Blackie  v.  Coonev,     -        -        -     629 

Blackley  v.  Sheldon,         -     806,  809 

Blackman  v,  Leonard,       -        -    408 

V.  Manlove,  -        -        -    313 

Blackmore  v.  Fleming,     .        -    772 

Blackstone  Bank  v.  Hill,  -     400,  408 

Blackwood  v.  Leman,        .        -    614 

Bladen  v.  Cockey,      -        -        .    805 

Blair  v.  Chamblin,     -        -        .561 

V.  Claxton,  -        -        -        .     285 

V.  Kilpatrick,      -        -        -    110 

V.  Reed,        -        .        -        -    442 

Blake  v.  Buchanan,  ...    381 

Blakely  v.  Blakely,    -        -        -    206 

Blakeney  v.  Blakeney,      -        -        8 

V.  Ferguson,        -        .      177,  184 

Blanchard  v.  Baker,  -       13,  131 

V.  Ely,  -        -        -      109,  297 

V.  Misor,       -        -        -        -    279 

V.  New  Jersey  S.  B.  Co.,    -    799 

Blane  v.  Sansum,       -        -    '    -    829 

Blaney  v.  Hendricks,     588,  597,  598, 

618 
Blanton  v.  Rice,         -     402,  421,  423 


Pages. 
Bleakner  v.  Farmers',  etc.  Bank,  674 
Bledsoe  v.  Nixon,  -  .  -  681 
Bleecker  v.  Vrooman,  -  -  268 
Bleeker  v.  Smith,  -  -  -  198 
Bleim  v.  Chester,  -  426,  429,  431 
Blekenstaff  v.  Perrin,  -  -  234 
Blenden  v.  Chai'les,  -  -  -  136 
Blight  V.  Ashley,  -  -  -  455 
Blingerland  v.  Morse,  -  -  451 
Bliss  V.  Cutler,  -  -  .  -  388 
V.  Swartz,  ....  427 
Blodgett  V.  Brattleboro,  -  -  724 
V,  Durgin,  -  -  -  -  633 
Blogg  V.  Johnson,  -  -  598,  608 
Blood  V.  Enos,  -  -  -  283,  433 
V.  Wilkins,  -        -        -     130 

Bloodgood  V.  Inglesby,  -  -  279 
Bloodworth  v.  Jacobs,  -  -  403 
Bloom  V.  Lemon,  ...  280 
BIoss  V.  Plymale,  -  -  437,  439 
Blot  V.  Barceau,  -  -  -  13 
Blow  V.  Russell,  ...  453 
Blunt  T.  Little,  -  -  -  -  811 
V.  McCormick,  -  -  -  203 
V.  Walker,  -  -  .  -  376 
Board  of  Justices  v.  Fennimore,  628 
Boardman  v.  Goldsmith,  -  -  743 
V.  Keeler,  -  -  .  .  204 
Bock  V.  Jones,  -  -  -  -  465 
V.  Miller,  -  -  -  .594 
Boddam  v.  Riley,  .  -  -  533 
Bodeuham  v.  Purchas,  -  398,  406 
Buddie  v.  Ely,  -.  -  -  -  763 
Bodine  v.  Glading,  ...  477 
Bodurtha  v.  Shelon,  -  -  -  301 
BodweU  V.  Swan,  -  -  232,  234 
Bogert  V.  Burkhalter,  -  -  763 
Boggs  V,  IMartin,  -  -  -  281 
Boiian  V.  Taylor,  .  823,  824,  825 
Bohen  v.  Duuphy,  -  -  -  237 
Bolivar  ]\Ian.   Co.    v.    Neponset 

Man.  Co.,     -        -        -        -      10 

Bolles  V.  Chancey,     -        .        -    375 

Bolton  V.  Street,        -        -    632,  645 

Bouesteelv.  Bonesteel,      -        -    143 

Bond  V.  Clark,  -        -        .        -    225 

V.  Griswold,         ...    454 

V.  Hilton,     ....      13 

V.  Jones,      -        -        -    421,  563 

T.  Pacheco,  ...    760 

V.  Ward,      -        -        -        -    164 

Bonnell  v.  Chamberlin,  373,  377,  434 

V.  Dunn,      -        -        .        -    211 

V.  Wilder,    -        -        -        .408 

Bonner  v.  Cojjley,      -        .        -    143 

Bonuey  v.  Bonuey,   -        -        -    208 

V.  Hopkinson,     ...     134 

Bonny  v.  Seeley,        ...    136 

Bonoile  v.  AVoodbury,       .        -    403 

Bonsted  v.  Bonsted,  -        -        -    747 

Booker  v.  Anderson,         -    572,  574 


XXll 


TABLE   OF   CASES   CITED. 


Pages. 
Boon  V,  Horn,  -  -  -  -  825 
Booth  V.  Ableman,  -  -  -  629 
V.  Carleton,  _  -  -  593 
V.  Coulton,  -  -  -  .  -  608 
V.  Smith,  .  -  -  436,  429,  431 
V.    Spuyten  Duyvil    R.   M. 

Co..  -  -  -  74,  84,  90,  130 
V.  Tyson,  -  -  -  .  283 
Boothby  v.  Sowden,  -  436,  438,  430 
Booty  V.  Cooper,  _  .  -  666 
Boraman  v.  Tooke,  -  -  -  3S1 
Borden  v.  Borden,  -  -  455,  457 
Borden  Mining  Co.  v.  Barry,  -  150 
Borngesser  v.  Harrison,  -  -  185 
Borries  v.  Hutchinson,  83,  83,  85,  88 
Borrow  v.  Window,  -  -  283 
Bosanquet  v.  Wray,  398,  406,  409 
Bosenian  v.  Rose,  -  -  -  173 
Bosley  v.  Porter,  -  -  -  398 
Bospham  v.  Pollock,  -  -  583 
Bosten  v.  Butler,  -  -  -  263 
Boston  V.  Wortliington,  -  -  137 
Boston,  etc.  R.  R.  Co.  v.  Middle- 
sex,   110 

V.    Old  Colony,   etc.   R.   R. 

Co.    -        -        -        -     790,  793 
V.  Slianly,    -        -        -        -      29 
Boston  &  Sandwich  Glass  Co.  v. 

Boston,        -        -        -        -    638 
Bostwick  V.  Lewis,   -        -        -    833 
Botsford  V.  Wilson,  -        -        -        6 
Bottomley  v.  Nuttall,        -        -    345 
Boulware  v.  Newton,        -        -    336 
Bourke  v.  Bulow,      -        -        -    810 
Bowas  V.  Pioneer  Tow  Line,     20,  48 
Bowe  V.  Gano,  -        -        -        -    409 
Bowen  v.  Bradley,    -        -     647,  050 
V.  Clark,      -        -        -        -     336 
V.  Hall,        -        -        -        -    234 
V,  Lockwood.      -        -        .    430 
Bowery  Savings  Bank  v.  Clin- 
ton,     -        -        .        -        _    539 
Bowker  v.  Harris,     -        -        -    439 
V.  Hoyt,       -        -     279,  283,  289 
Bowler  v.  Hutchinson,      -        -    493 
V.  Lane,       -        -        -     731,  757 
Bowley  v.  Halway,  -        -        -    291 
Bowman  v.  Cornell,  -        -    246 

V.  Tiel,         ....        7 
Bowyer  v.  Cook,        .        -        .    199 
Boyce  v.  Bayliffe,      -        -        43,  49 
V.  Grundy,  ...    714 

V,  Pritchctt's  Heirs,    -        -    593 
V.  Sinclair,  .        .        _    674 

Boyd  V.  Brown,  -  -  -  111 
V.  Fitt,  -  -  -  -  139 
V.  Gilchrist,  -  -  -  633 
V,  Hind,  -  -  .  _  430 
V.  Hitchcock,  -  439,  431,  433 
V,  Sales  -  -  -  _  339 
V.  Whitfield,        -      135,  140,  145 


Pages. 
Boyden  v.  Burke,  -  -  -  763 
V.  Moore,  -  -  210,  451,  474 
Boyer  v.  Barr,  -  -  -  719,  733 
Boyers  v.  Boddie,  ...  563 
V.  Pratt,  -  -  -  -  810 
Boyken  v.  State,  -  -  -  838 
Boyutou  V.  Trumbull,  -  -  804 
Boys  V.  Ancel,  -  -  490,  513,  534 
Bracegirdle  v.  Orford,     73,  733,  7()9, 

770 

Bracken  v.  Neill,        -        -        -    743 

Brackenridge  v,  Holland,         -    163 

Brackett  v.  Lubke,    -        -        -    750 

V.  Norton,   -        -        -        -    631 

V.  Winslow,         -        -        -     3.")2 

Bradford  v.  Fox,        -     376,  377,  378 

V.  Holies,     -        .        -        -    543 

Bradley  v.  Annis,      -        -        -     199 

V.  Cartwright,  -  -        .    286 

V.  Denton,  -        -        -        -    148 

V.  Fuller,      -        -        -        -      53 

V.  Geiselman,      -        -        .    639 

V.  Gregory,         -     436,  438,  430 

V.  Morris,     -        -        -        -    731 

V.  Rea,         -        -        -        -    277 

V.  Washington,  etc.  Co.,     -    186 

Bradley's  Lessees  v.  Bradley,  -    805 

Bradner  v.  Faulkner,        -        -    608 

Bradshaw  v.  Bennett,       -        -    597 

V.  Buchanan,       -        -        -     731 

V.  Cracroft,  -        -     475, 504 

V.  Davis,      -        -        -        -    467 

V.  Lancashire  Ry  Co.,        -    198 

Bradstreet  v.  Heron,        -        -    381 

Bradt  v.  Koon,  -        -        -        -    317 

Brady  v.  Brady,         -        -        -    790 

V.  Durbrow,         .        -        _    346 

V.  Hill,         -        -        -     398, 406 

V.  Jones,      ...     453, 463 

V.  Price,      -        -        -        -    281 

V.  United  States,        -        -    401 


Bragg  V.  Witzell, 


208 


Brainard  v.  Boston,  etc.  R.  R. 

Co., 786 

V.  Champlain  Trans.  Co.,  531,  615 
V.  Jones,  -  -  -  -  599 
Brannon  v.  Dowse,  -  -  -  134 
Branch  Bank  v.  Harrison,  -  550 
Brandon  v.  Newington,  -  -  703 
Brandt  v.  Foster,  -  -  290, 773 
Brangwin  v.  Perrott,  -  -  599 
Braning  V.  New  Orleans,  etc.  Co.,  6 
Branneuberg   v.    Indianapolis, 

etc.  R.  R.  Co,,  -  -  177,  184 
Brannin  v.  Farees,  -  -  -  816 
Brannon  v.  Hessell,  -  -  -  550 
Branthwait  v.  Halsey,  -  -  693 
Brantinghani  v.  Fay,  -  .  14 
Brasher  v.  Kennedy,  -  -  749 
Braton  v.  Gregory,  .  -  -  833 
Bratton  v.  AlUson,    -        -        -    691 


TABLE   OP   CASES    CITED. 


XXlll 


Pages. 

Brayton  v.  Chase,     -        -         14, 95 

Brazier  v.  Banning,  -        -        -     175 

V.  Bryant,    -        -        -        -    409 

Breckenridge  v.  Brooks,  -        -    607 

V.  Hoke,       -        -        .        .    593 

V.  Taylor,     -        -        -        -    589 

Bredenbecker   v.  LoAvell,    310,   405, 

407,  408,  416,  423 

Breed  v.  Cook,  -        -        -        -    371 

V.  Hurd,      -        -     455,  456,  457 

Breese  v.  McCann,    -        -        -    286 

Brent  v.  Tevebaugh,  -        -    206 

Bi'ewer  v.  Branch  Bank,  -        -    370 

V.  Dew,        -        -        -    731,  732 

V.  Fleming,  .        -        -     165 

V.  Hartie,     -        -        -        -    696 

V.  Inhabitants,  etc.,    -        -    283 

T.  Knapp,    -        -        -    397,  406 

V.  Temple,   -        -        -        -    769 

V.  Tvringliam,     -        -        -    803 

V.  Waterwitch,   -        -        -     190 

Brewster  v.  Bours,    -        -    375,  377 

V.  Countrj-man,  -        -    140 

V.  Edgerly,  -        -    479,   487 

V.  Wakefield,  493,  538,  547,  549, 

550,  554 

Breyfogle  v.  Beekley,        -        -    616 

Bridge  v.  Mason,        -        -        -    131 

Bridgman  v.  Hopkins,      -    233,  234 

Bridgeport  F.  &  M.  Ins.  Co.  v. 

Wilson,         -        -        -        -     135 

Bridges  v.  Grand  J.  R'y  Co.,    -      70 

V.  Stick  ney,  -        -  74,  79,  91 

Brigham  v.  Hawley,  -    279,  281 

V.  Moreau,   -        -        -        -    574 

V.  Van  Buskirk,  -    603,  713 

Briggs  V.  Boyd,  -        -        -     135 

V.  Calverly,  -        -        -    444 

V.  Greenfield,       -        -        -    833 

V.  Montgomery,  -        -    280 

V.  N.  Y.  etc.  R.  E.  Co.,       -    243 

V.  Richmond,      -        -    348,  350 

Bright  V.  Rowland,   -        -    489,  504 

Brill  V.  Flagler,  -     786,  798,  803 

Brinkerhoff  v.  Foote,         -        -    563 

Bristol  M.  Co.  v.  Gridley,  -       66,  763 

British  Columbia  S.  M.  Co.  v. 

Nettleship,  -        -        -        -      85 

Britton  v.  Bishop,      -        -    260,  783 

V.  Opdike,    -        -        -        -    303 

V.  Phi  hips,  -        -        -        -    833 

V.  Turner,  -      160,  283,  299 

Brizzee  v.  Maybee,    -        -    629,  801 

Brock  V.  Jones,  .        .        _    468 

Brockenborough  v.  Blj-the,      -    594 

Brocksclimidt  v.  Hagebusch.   -    404 

Brockway  v.  Clark,  -     498,  578,  579 

V.  Kinney,  -        -        -        -     179 

Brokaw  v.  New  Jersey,  etc.,  R. 

R.  Co.,  -        -        .        .    750 

Bromley  v.  Wallace,         -        -    254 


Pages. 
Bronseman  v.  Frank,  -  -  633 
Brouson  v.  Chicago,  etc.  R.  R. 

Co., 468 

V.  Fitzluigh,  -  436,  439,  443 
V.  Martin,  -  -  -  -  293 
V.  Rodes,  -  326,  328,  330,  333 
V.  Rugg,  -  -  -  347,  354 
Brook  V.  Euderby,  -  -  398,  406 
Brooklyn  v.  Brooklyn  R.  R.  Co.,  134, 

137,  143 

V.  Sec[ua,      -        -        -        -    815 

Brooklyn  Bank  v.  De  Grauw,  461, 

463,  465 
Brookman  v.  Metcalf ,       -        -    389 
Brooks  V.  Hanford,  -        -        -    316 
V.  Hovt,       -        -        -        -    246 
V.  Moody,    -        -        -        -     290 
V.  Stewart,  -        -        -        -    443 
V.  White,     -        -     437,  438,  439 
Brosfield  v.  Lee,        -        -        -    199 
Brough's  Estate,        -        -        -    309 
Broughtonv.  Mitchell,      -        -    596 
Brown,  Matter  of,     -        -        -    383 
Bi'own  V.  Allen,         -        -        -    704 
V.  Barkliam,         ...    710 
V.  Beatty,     -        -        -        -      24 
V.  Bellows,  -        -        -    490,  535 
V.  Brobham,         -        -        -    404 
V.  Brooks,    -        -        -        -    233 
V.  Buckmaster,  -        -        -    289 
V.  Campbell,         -        -        -    589 
V.  Chicago,  etc.  R.  R.  Co.,      78 
V.  Cronise,  -        -        -    380,  383 
V.  Crowley,  -        -        -     290 

V.  Cumiuings,  -  -  -  49 
V.  Curtis,  -  -  -  -  630 
V.  Dean,  -  -  -  807,  809 
V.  Dysinger,  -  447,  449,  454 
V.  Edgington,  .  -  -  134 
V.  Emerson,  -  -  -  13 
V.  Feetey,  -  -  -  -  433 
V.  Ferguson,  -  -  .  468 
V.  Foster,  -  -  -  -  19 
V.  Gilmore,  -        -    455,  457 

V.  Gooden,  -  -  -  -  398 
V.  Gracey,  -  -  -  -  666 
V.  Haven,  -  -  -  140,  145 
V,  Hiatts,  -  -  -  -  696 
V.  Harless,  -  -  -  -  839 
V.  Jones,  -  -  -  -  143 
V.  King.  -  -  -  -  206 
V.  Monter,  -  -  -  -  769 
V.  Marsh,  ...  -  457 
V.  Maulsby,  -  -  -  556 
V.  Nagel,  -  -  -  -  554 
V.  Olmsted,  -        -    373,  375 

V.  Orr,  -        -        -        -    260 

V.  Perkins,  -  -  211,  213,  433 
V.  Saul,  -  -  -  -  447 
V.  Sax,  -  -  -  164,  166 
V.  Silsby,     -       -       -       -    693 


XXIV 


TAELE   OF   CASES    CITED. 


Pages. 

Brown  v.  Simons,   303,  305,  447,  454 

V.  Smith,      -        -      111,  177,  193 

V.  Stark,       -        -        -  -    290 

V.  Swineford,      -        -  -    739 

V.  Teeter,     -        -        -  -    349 

V.  Tuttle,     -        -        -  277,  278 

V,  Watson,  -        -        -  -        6 

V.  Welch,     -        -        -  -    326 

V.  Werner,  -        -        -  -      96 

V.  Williams,        -        -  440,  442 

Browne  v.  Moore,     -        -  795,  798 

Brownlee  v.  Steel's  Ex'rs,  -    609 

Brownell  v.  McEwen,        -  -    804 

Browner  v.  Davis,     -        -  -      13 

Browning  v.  Hanford,      -  -    350 

V.  Morris,     -        -        -  -    403 

Brownson  v.  Rock  Island,  etc. 

Co., 465 

V.  Wallace,          -        -  -    760 

BiTice  V.  Hunter,       -        _  -    586 

V.  Rawlins,           -        -  -     772 

Bruen  v.  Morquand,         -  435,  442 

Brugh  V.  Shanks,      -        -  -     602 

Bruner's  Appeal,        -        -  .    623 

Brushaber  V.  Stegemann,  736,811 

Bryan  v.  Maumee,     -        .  -    471 

Bryant  v.  Craig,        -        _  _    625 

V.  Edson,      ...  -    632 

V.  Proctor,  -        -        .  427,  429 

V.  Smith,     -        -        -  -    357 

V.  Ware,      -        -        -  -    163 

Buchanan  v.  Gamble,        -  -    822 

Buchegger  v.  Shultz,        -  327,  829 

Buck  V.  Doyle,  -        -        -  -    358 

V.  Fislier,     -        -        -  -    606 

Buckles  V.   Northern    Bank  of 

Ky., 814 

Buckley  v.  Buckley,          -  -      18 

V.  Dawson,  -        -        -  -    130 

V.  Dayton,  -        -        -  -    435 

V.  Garrett,  -        -        -  -    402 

V.  Welch,     -        -        -  -    281 

Buckman  v.  Davis,   -        -  -    709 

V.  Greenleaf,       -        -  805,  806 

Buckmaster  v.  Grandly,   -  -    588 

Buddington  v.  Shearer,     -  -    215 

Budgett  V.  Jordan,    -        -  -    561 

Buel  V.  N.  Y.  etc.  R.  R.  Co.,     -      63 

Buell  V.  Flower,        -        -  -    782 

Buffalo  &  H.  Turnpike  Co.  v. 

Buffalo,        -        -        -  -    629 

Buford  V.  Gould,        -        -  -    614 

V.  McTuney,         -        -  -    234 

Bugden  v.  Bigwold,  -        -  -    303 

Bulkley  v.  Smith,      -        -  825,  826 

V.  United  States,         -  -    134 

Bull  V.  Flower,  -        -        -  -    260 

V.  Ketchum,         -        -  709,  711 

V.  Liney,      -        -        -  -    242 

V.  Parker,    -        -        -  .    443 

Bullard  v.  Hascall,    -       -  -    380 


Pages. 

Bullard  v.  Leavett,    -        -        -    260 

Bullen  V.  McGilhcuddy,    -        -    431 

Bullock  V.  Boyd,        -        -        -    661 

V.  Davis,       -        -        -        -     327 

V.  Ferguson,         ...     (594 

Bulme  V.  Hutton,      -        -        -    212 

V.  Wombough,    -        -        -     645 

Bulmier  v,  Erie  R.  Co.,     -        -    750 

Bulwer  v.  Newbui-gh,        -        -    459 

Bump  V.  Wight,         -        -        -       10 

Bumpass  v.  Webb,     -        -        -    760 

Bum  pus  V.  Platner,  -        -        -    290 

Bunge  V.  Coop,  -        -        -    427 

Buun  V.  Hoyt,   -        -        -        -    807 

V.  Kinney,  -        -        -     570,  578 

Bunnell  v.  Greathead,       -        -    254 

V.  Pinto,       -        -        -        -    183 

Burbauer  v.  New  York,  etc.  R. 

R.  Co.,  -       -        -        -    814 

Bvirch  V.  Benton,  -  -  -  6 
Burcliard  v.  Frazer,  -  -  -  349 
Burdett  v.  Hull,  -  -  -  37a 
Burdick  v.  Green,  -  -  375,  378 
v.  Wheeden,  -  -  -  811 
Burger  v.   Nortliern  Pacific  R. 

R.  Co.,  -        -        -        .    803' 

Purges  V.   Southbridge  Saving 

Bank, 55a 

Burgess  v.  Abbott,     -        -        -    208 

V.  Langley,  -        -        -    804 

Burk  V.  Chrisman,     -        -        -    303 

Burkens  v.  Tebbits,  -        -        -    809 

Burkhart  v.  Sappington,  -     550,  554 

Burks  V.  Albert,         -     406,  409,  423 

Burn  V.  Morris,  -        -        -     239 

Burnes  v.  Hedley,      -        -        -    573 

Burnett  v.  Carath,     -        -        -    829 

V.  Simpkins,        -        -        .    254 

V.  Smith,     -        -        -        -    299 

Burnhisel  v.  Firman,        -     549,  578 

Burns  v.  Anderson,  -        -        -    549 

V.  Hunt,       -        -        -        -    394 

V.  Webb,      -        -        -        -    232 

Burr  V.  Burch,  -        -        -    677 

V.  Todd,       -        -        -     490,  513' 

V.  Waterman,      -        -        -    775, 

Burrage  v.  Milsom,    -        -        -    721 

Burrell  v.  New  York,  etc.  Co.,    19, 

118,  131,  176,  763,  764 

Burroughs  v.  Clancey,      -     280,  285 

Burrows  v.  Bangs,     -     371,  372,  375 

v.  Cook,       ...        -    423 

V.  Hannegan,      -        -        -    635 

V.  March,  etc.  Gas  L.  Co.,  25,  41, 

42,  64 

Burson  v.  Cox,  .        .        -    770 

Burton  v.  Anderson,       663,  666,  816 

V.  Fay,         ...       83.  238 

V.  Pinkerton,       -        -  39,  43,  49 

V.  Stewart,  -        -    268,  277, 

801 


TABLE    OF    CASES    CITED. 


XXV 


Pages. 
Burwell  v.  New  York,  etc.  Salt 

Co., 195 

Busby  V.  Carmac,      -        -     632,  063 

Bush  V.  Biildrey,        -        -     344,  350 

V.  Caufield,  -        -        -    133 

V.  Cole,        -        -        -        -    159 

V.  Holmes,  -        -        -    173 

V.  Prosser,  -      233,  334,  336,  257 

Buson  V.  Elliott,        -        -        -    608 

Bussey  v.  Donaldson,         -        -      17 

V.  Grant's  Adni'r,        -     414,  421 

Buswell  V.  Pioneer,  -        -    375 

Butcher  v.  Norwood,         -        -    713 

Butchers'  and  Drovers'  Bank  v. 

Brown,         -        -        -        -    416 

Butler  V.  Butler,        -        -        -    587 

V.  Kent,       -        -        -  6,  68,  763 

V.  Kirby,      -        -        -        -    608 

V.  Mehrling,        -        _        -    788 

V.  Mercer,    -        -        -        -    788 

V.  Myer,       -        -        -        -    633 

V.  N.  Y.  etc.  R.  R.  Co.,      -        7 

V.  Niles,       -        -        -        -    315 

V.  Stoullit,  -        -        -        -    601 

V.  Wright,  -        -        -        -     175 

Butlers  v.  Old,  -        -     636,  642,  645 

Butterfield  v.  Forrester,  -        -      70 

Butts  V.  Dean,   -        -        -        -    373 

V.  Gould,      -        -        -        -    229 

Byers  v.  Fowler,        -        -        -    423 

V.  Homer,  ...     244,  260 

Bygong  V.  Tyson,      .        -        -    490 

Byi"d  V.  Gasfjuet,       .        -        -    603 

Byrkett  v.  Monohan,         -        -    236 

Byrne  v.  Grayson,     -        -     414,  420 

V.  Wilson,    -        -        -        -      70 

Byron  v.  Fleming,     ...    357 

Cadman  v.  Lubback,        -        -  453 

Cadwell  v.  Wentworth,    -     400,  403 

Cady  V.  Huntington,         -        -  15 

Cage  V.  Her,       -        -        -        -  417 

Cahill  V.  Pristony,    -        -        -  763 

Caimes  v.  Knight,    -        -        -  498 

Cairo,  etc.  R.  R.  Co.  v.  Holbrook,  776 

Calcroft  V.  Harborough,  -        -  254 

Calder  v.  Bull,  -        -        -        -  670 

Caldwell  v.  Craig,     -        -        -  454 

V.  Julian,     -        -        -        -  210 

T,  Lawrence,       -        -        .  488 

V.  New  Jersey  Steamboat 

Co., 724 

V,  Richards,         -        -        -  603 

V,  Sawyer,  -        -        -        .  277 

Calhoun  v.' Marshall,        -        -  683 
California  Steam  Nav,   Co.  v. 

Wriglit,        -        -        .        .  505 

Calkins  v.  State,        -        .        .  430 

V.  Sumner,  -        -        -        -  5 

Call  V.  Allen,     ....  245 

V.  Hagar,     -        -        -        -  143 


Pages. 
Call  V.  Middlesex,     -       -       -    191 
V.  Scott,       -      '465,  468,  493,  576 
Callaghan  v.  Hall,     -        -        -    623 
Callahan  v.  Boazman,      -        -    413 
Callison  v.  Lemons,  -        -        -    824 
Calloway  v.  Middleton,     -        -    234 
Calton  V.  Bragg,        -        -        .    549 
Calvert  v.  Carter,      -        -     413, 414 
Cambrian  St.  P.  Co.  Ex  parte,       83 
Cameron  v.  Smith,  -        -        -     549 
Camp  V.  Bates,  -        -        -     679,  684 
V.  Hamhn,  -        -        -      108,  173 
V.  Morgan,  -        -        -        -     177 
V.  Simons,   -        -        -        -    455 
Campbell's  Estate,     -        -        -    350 
Campbell  v.  Booth,  -        -     427,  433 
V.  Hatchell,         -        -        -    178 
V.  Lewis,     -        -        -        .    831 
V.  Masse,     -        -        -        -      60 
V.  Mesier,     -        -        -        -    590 
V.  Metcalf,  -        -        -        -    143 
V.  Miller,      -        -        -        -     339 
V.  Miltenberger,          -     150,  238 
V.  Shields,    -        -     286,  493,  576 
V.  Skinner,  -        -        -        -    430 
V.  United  States,        -        -    798 
V.  Woolen,  -        -        -        -    773 
Campion  v.  Crawshay,     -        -    773 
Canadian,  The,  -        -        -        -     105 
Canal  Co.  v.  Rowan,          -        -    237 
Canal  Commissioners  v.  Kemp- 
shall.    599 

Canandaigua,  etc.  R.  R.  Co.  v. 

Payne,  -        -        -     786,793 

Candee  v.  Skinner,   -        -        -    623 

V.  Webster,  -        -        -    694 

V.  Western  Union  Tel.  Co.,      74 

Canetosta    &    M.   Prk  Co.   v. 

Parkin,        -        -        -        -    469 
Canfield  v.  Eleventh  School  Dis- 
trict,      675 

Cannon  v.  Biggs,  -  -  -  616 
Cannop  v.  Levy,  -  -  221,  440 
Canridge  v.  Allenby,    360,  362,  364, 

367 
Canter  v.  Am.  &  O.  Ins.  Co. ,  -  4 
Cantliug  v.    Hannibal,    etc.    R. 

R.  Co.,  -        -        -        -    803 

Canton  v.  Shaw,         .        -        -    576 

Capeu  v.  Crowell,      -        -    549,  554 

Capron  v.  Adams,      .        -        -    343 

Card  V.  Ellsworth,     ...      71 

Cardell  v.  Bridge,      -        -     160,  280 

Garden  v.  Jones,        -        -        -    383 

Cardinal  v.  O'Dowd,  -    399,  403 

Carey  v.  Askew,        -        -        -    608 

V.  Clioat,      -        -        -        -    781 

V.  Day,         -        -        -    259,  776 

V.  GuilloNv,  -        -        -    278,  293 

Carle  wis  v.  Laurie,   -        -        -    769 

Carley  v.  Vance,        .        -        -    697 


XXVI 


TABLE    OF   CASES    CITED. 


Carlyonv.  Lannon, 
Cai'Dian  v.  Pultz, 
Cai'iiegie  v.  Morrison, 
Carpenter  v.  Barber, 

V.  Eastern  Transp.  Co., 
S40, 


V.  Going, 

V,  Lockhart, 

V.  Robinson, 

V.  Sberfy,     -        -        - 

V.  Welch,     - 
Carpenter  v.  Atherton,     - 

V.  Gardiuier, 
Carr  v.  Anderson, 

V.  EdNvards, 

V.  Stevens,  -  -  - 
Carrier  v.  Boston,  etc.  R.  R. 

V.  Davis,  -  -  - 
Carrington  v.  Crocker,   206, 

V.  Taylor,     -        -        - 
Carroll  v.  "Welch, 
Carson  v.  Hill,  -        - 

v.  Pearl,  -  .  - 
Carson's  Ex'r  v.  Jennings, 
Carter  v.  Carter, 

V.  Jones,      -        -        - 

V.  King,       -        -        - 

V,  Lewis,      -        -        - 

V.  Moses,      -        -        - 

V.  Neal,        -        -        - 

V.  Spencer, 

V.  Thorn,     -        -        - 

V.  Towne,     .        -        - 

V.  Wallace, 
Cartmill  v.  Brown,     - 
Cartwright  v.  Cook, 

V.  Gardner, 

V.  Greene,    -        -        - 

V.  Roflf, 
Caruthers  v.  Dillman, 

V.  Hall, 

v.  Humphrey,     - 
Carver  v.  Adams, 
Cary  v.  Bancroft, 

V.  Covirtenay, 
Case  V.  Boughton,    - 

V.  Garrish,  -        -        - 

V.  Hall, 

V.  Hotchkiss, 

V.  Marks,     -        -        - 
Casey  v.  Harris, 
Cash  V.  Kennion, 
Cask  V.  Fowler, 
Cass  V.  Adams,  -        -        - 
Cassacia  v.  Plioenix  Ins.  Co, 
Casselbery  v.  Forgner, 
Cassell  V.  Hayes, 
Cassidy  v.  Le  Fevre, 
Castleman  v.  Holmes, 
Castleton  v.  Miner,    - 
Cate  V,  Gate, 
Catherine,  The,    . 


-    532 


327, 


Co., 

427, 


Pages.  Pages. 

-  761      Cathrow  v.  Collins,  -  -  -    388 
448,  467      Catlin  v.  Latson,        -  -  -    823 

-  645       '      V.  Lyman,   -        -  -  677,  681 

-  747      Caton  v.  Shaw,  -        -  -  493,  578 

-  243      Catskill  Bank  v.  Messenger,  436,  441 
402,  411      Caulkins  v.  Harris,   -  -  -    594 

Cavanaugh  v.  Austin,  -  -    233 

Cavender  v.  Guild,    -  -  -    664 

Cowan  V,  Silliman,    -  -  -      13 

Caxton  V.  Chadley,  -  -  -    348 

Cecil  V.  Hicks,  -        -  -  -    550 

Chadbourn  v.  Watts,  -  -    573 

Cliadwick  v.  Lamb,  -  -  -    210 

V.  Trower,   -        -  -  -    820 

Chaffee  v.  Sherman,  -  -    210 

Chahoon  v.  HoUenback,  -  -    451 

Chalie  v.  Duke  of  York,  -  597,  598 

Chalmers  v,  Shackell,  -  -    236 

Chamberlain  v.  Bagiey,  -  486,  498 

V.  Beller,      -        -  -  -     135 

V.  Blair,       -        -  -  -    327 

V.  Chandler,        -  -  749,  758 

V.  Godfrey,.         -  -  134,  135 

V.  Maitlaud,        -  -  -    603 

V,  Morgan,  -        -  -  -    148 

V.  Murphy,          -  -  -    244 

V.  Parker,    -        -  -  10,  13 

V.  Scott,       -        -  -  -    132 

V.  Smith,     -        -  -  -    588 

V.  Vance,     -        -  -  233,  829 

Chamberlyn  v.  Delarive,  -  -    383 

Chambers  v.  Hunt,   -  -  205,  210 

Chambersburg  Ins.  Co.  v.  Smith,  383 

Chambliss  v.  Robertson,  -  544,  663 

Chambret  v.  Cogney,  -  -    287 

Champant  v.  Ranelagh,  -  -    633 

Champion  v.  Joslin,  -  -  -    455 

V.  Vincent,          -  -  -    721 

Champney  v.  Cooper,  -  -    353 

Chancellor  v.  Schott,  -  -    404 

Chandler  v.  Edson,   -  -  165,  166 

v.  Herrick,           -  -  -    443 

V.  Hill,         -        -  -  -    206 

Chaney  v.  Cooke,      -  -  -    587 

Chapin  v.  Murphy,    -  -  538,  549 

Chapline  v.  Scott,      -  -  -    687 

Chapman  v.  Chicago,  etc.  R.  R. 

Co.,  -        -        -  -  174,  629 

V.  Coffin,      -        -     373,  807,  809 

V.  Colhns,    -        -  -  -    352 

Durant,  -        -  -  -    373 

Emerick,         .  -  -    770 

Hicks,      -        -  -  -    468 

How,       -        -  -  -    317 

Kirby,      -        -  -  -    123 

Robertson,       -     645,  649,  653 

130             V.  Thames  M.  Co.,  -  -      10 

376      Charles  v.  Altin,        -  -  -    223 

145      Charleston    Steamboat  Co.    v. 

163  Baron,  ....      60 

281      Charrington  v.  Loing,  -  -    476 


525 
803 
829 
679 
331 
813 
829 
598 
321 
788 
333 
436 
-■  70 

-  160 

-  413 

-  829 

-  155 

-  255 

-  352 

-  619 

-  708 

-  562 

-  303 

-  775 

-  599 

-  28 

-  13 

-  538 
347,  428 

-  478 

-  639 

-  772 

-  199 

-  304 

-  471 

-  702 
455 
343 
350 
430 

73 
615 
234 
349 
632 
597 
350 
708 
177,  179 

-  811 
110, 


-  348 


343, 


V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


TABLE   OF   CASES   CITED. 


xxvu 


Pageft. 
Charter  v.  Stevens,  -  -  -  350 
Chartres  v.  Caii-nes,  -        -    631 

Chase  v.  Allen,     489,  506,   508,  525, 

528 
V.  Bassett,  -  -  -  -  815 
V.  Brown,  -  -  -  -  388 
V.  Dow,  -  -  -  -  664 
V.  Hinman,  -        -        -    134 

V.  Manhardt,  ...  G93 
V.  Monroe,  -  -  -  -  677 
V.  New  York  Cent.  R.  R. 

Co., 154 

V.  Silverstone,     -        -        -        4 
V.  Woodbury,      -        -        -    303 
Chasemore  v.  Richards,    -        -        4 
Chastaiu  v.  Johnson,        -     375,  377 
Chatham  v.  Ward,    -        -        -    357 
Chatterton  v.  Fox,     95,  280,  285,  286 
Chaiincey  v.  Yeaton,        -     628,  629 
Clieddick  v.  Marsh,  -        -     490,  525 
Cheek  v.  Waldruni,  -        -        -    596 
Cheeseborough  v.  Hunter,        -    589 
CheUis  V.  Woods,       -        -        -    347 
Chemenant  v.  Thornton,        459,  462 
Cherrv  v.  McCaU,      -        -        -    738 
v."  Sutton,    -        -        -     279,  285 
V.  Thompson,      -        -        -    148 
Chesapeake  Bank  v.  Swain,      -    333 
Chesapeake  Canal  Co.  v.  Grove,  191 
Chester  v.  Dickinson,        -        -      30 
V.  Wheelright,    -      412,  413.  423 
Cheveley  v.  Morris,  -        -        -    7G1 
Chew  v.  Bank  of  Baltimore,    -    628 
Clieworth  v.  Peckford,      -        -    226 
Chicago  V.  Allcock,  -        -        -    617 
V.  Barbian,  _        -        -    604 

V.  Green,  -  -  -  -  195 
V.  Hoy,  -  -  -  -  71 
V.  Jones,  -  -  -  -  811 
V.  Kelly,  -  -  -  758,  811 
V.  Lunglass,  .  _  .  758 
V.  Palmer,  -  -  -  -  604 
V.  Robbins,  -  -  -  137,  139 
V.  Smith,  -  -  -  -  810 
Chicago  Ins.  Co.  v.  Stanford,  -  497 
Chicago,  etc.  R.  R.  Co.  v.  Dick- 
son, -  -  -  -  754,  757 
V.  Garvy,  -  -  -  -  811 
V.  Hughes,  -  -  -  -  811 
V.  Langlass,  -  -  -  811 
V.  McAra,  -  -  -  -  811 
V.  Nicliols,  -  -  -  190,  205 
V.  Parks,  -  -  -  -  758 
V.  Paygant,  -        -        -    811 

V.  Peacock,  _        --       -    810 

V.  Ward,      -        -        -    151,  776 
V.  Williams,        -        -        -    721 
Chicago  &  N.   W.   R'y  Co.   v. 

Schultz,  -  -  -  -  629 
Child  V.  Homer,  -  -  .  230 
Childress  v.  Yourie,  -        -        -      21 


PdCICS 

Chiles  V.  Drake,  -  722,  727,  728 
Chilliner  v.  Chilliner,  -  -  478 
Chinery  v.  Viall,  -  -  -  282 
Chinn  v.  Hamilton,  676,  705,  707,  708 
Chipman  v.  Bailey,  -  -  -  450 
V.  Emeric,  -  -  -  -  826 
Chisern  v.  School  Directors,  -  823 
Chisholm  v.  Arrington,  -  -  333 
Chitty  V.  Naish,  -        -        .    4U9 

Chorie  v.  Mosely,      -        .        -    477 
V.  State.       -        -        -        -    803 
Christ      Church     Hospital     v. 

Fuechsel,    -         -        -    821,  833 

Christianson  v.  Linford,    -        -        7 

Christie  v.  Ogle,        -        -    277,  291 

Church  V.  Bridgman,        -        -    234 

V.  Kidd,        -        -        -        -    613 

V.  MaUoy,    ....    643 

Churcher  v.  Stringer,        -        -    597 

Churchill  v.  Bowman,       -    427,  431 

V.  Warnei',  -        -        -        -    350 

V.  Watson,  -        -        -        -      73 

Churchmasero  v.  Gilbert,      633,  666 

Cilley  V.  Hawkins,     -        -    443,  697 

Cincinnati,   etc.   R.    R.   Co.    v, 

Rodgers,       -        -        -        -    238 
Citizens'  Bank  v.  Carson,     225,  370, 

375,  406 
City  V.  Larason,  -  .  -  684 
City  Bank  v.  Cutter,  444,  447,  698 
V.  Smith,  -  -  -  -  477 
City  of  Carondelet  v.  Desnoyer,  441 
City  Discount  Co.  v.  McLean,  421 
Citv  of  Pekin  v.  Brereton,  -  6 
City  Savings  Bank  v.  Bidwell,  647, 

649 
Clafiin  v.  Hawes,  -  -  468,  469 
Claiborne  v.  Tanner,  -        -    818 

Clanhess  v.  Perry,  -  -  -  125 
Clap  V.  Draper,  -        -        -    210 

Clapp  V.  Hudson  R.  R.  Co.,  -  810 
Clapper  v.  Union  Bank,  -  440,  443 
Clare  v.  Maynard,  -  77,  100,  141 
Ciaremont  Bank  v.  Woods,  -  207 
Clark  V.  Baird,      780,  787,  789,  794, 

798 
V.  Baker,  -  -  -  -  184 
V.  Bales,  -  -  -  -  824 
V.  Barlow,  -  -  -  -  606 
V.  Boardman,  -  -  -  767 
V.  Bogardus,  -  -  344,  355 
V.  Brown,  -  -  -  -  813 
V.  Burdett,  -  -  -  -  401 
V.  Bush,  -  -  220,  440,  599 
V.  Carter,  -  -  -  -  204 
V.  Chetwood,  -  -  -  6 
V.  Clark,  -  -  -  -  616 
V.  Dales,  -  -  -  -  614 
V.  Dalton,  -  -  -  -  614 
V.  Dunsmore,  -  -  -  435 
V.  Dutton,   -        -        -        -    610 


XXVlll 


TABLE    OF    CASES    CITED. 


Clark  V.  Field,   -        -        -        -    771 

V.  Hallock,  -        -        -        -    240 

V.  Hannibal,  etc.  R.  R.  Co.,  822 

V,  Iowa  City,      -        -        -    684 

V.  Kay,        -        -        -        -    577 

V.  Lyon  County,         -        -    468 

V.  Mayor,  etc.,     -        -    461,  462 

V.  Mayor  of  New  York,     -    118 

V.  Meigs,      -        -        -        -        7 

V.  Merslion,         -        -        -    408 

V.  Miller,     -      204,  247,  249,  253 

V.  Moody,     -        -        -        -    131 

V.  Moore,     -        -        -        76,  91 

Mullenix,         -        -     465,468 

Mundall,  -        -        -    871 

Nevada  L.  &  M.  Co.,      -    202 

Newsain,         -        -     749,824 

Parisli,     -        -        -        -    206 

Parr,        .        -        .        .    594 

Peckharn,        -        -        -        6 

Phelps,    -        -        -        -    573 

V.  Pinney,    -        -        -        -    830 

V.  Russell,  -        -      106,  155,  443 

Scott,      -        -        -      399,402 

Smith,     -        -        -        -      13 

State,       -        -        -        -    803 

Stevenson,      -        -        -    804 

Swift,      ...        -      14 

V.  Walbridge,      -        -        -    273 

V.  "Wells,      -        -        -     846, 349 

V.  Whitaker,       -        -        -    241 

Clarke  v..  Janesville,         -        -    684 

V.  Lamb,      -        -        -     809,  820 

V.  Seaton,    -        -        -        -    827 

Clarke's  Adm'r  v.  Day,    -        -    600 

Clarksou  v.  Carter,  -        -        -    204 

V.  De  Pej-stei",     -        -        -    626 

Claughton  v.  Black,         -        -    828 

Clay  V.  Drake,   -        -        -        -    541 

V.  Hart,        -        -        -        -    623 

Clayes  v.  Hooker,     -        -     643, 650 

V.  White,     -        -        -        -    184 

Claypool  V.  Sturgess,        -        -    577 

Clayton's  Case,  -        -        -    419 

Clayton  v.  O'Connor,        -        -    628 

Cleaveland  v.  Grand  T.  R.  Co.,    209 

Cleaves  v.  Lord,        .        _        -    204 

Clegg  V.  Dearden,     -     196,  198,  201 

Cleghorn  v.  New  York,  etc.  R. 

P   Co  .        -        _        -    751 

Clement  v.  Cash,  479,  488,  490,  506, 

525 

V.  McConnell,      -        -        -    618 

Clements  v.  Hawks  Manuf.  Co.,  173 

Clerk  V.  Witliers,      -        -        -    350 

Cleveland  v.  Burrill,         -     593,  595 

Cleveland,  etc.  R.  R.  Co.  v.  Ball,  795 

v.  Perkins,  ...    79(; 

V.  Spar,        -        -        -        -        6 

Clevenger  v.  Dunaway,    -     721,  724 

Chflord  V.  Richards,         -        -    794 


Pages. 

Clifton  V.  Hooper,     - 

- 

9,  14,  15 

Clinton  v.  Mercer,     - 

. 

-      13 

V.  Myers, 

- 

-       13 

Cliquot's  Champagne, 

- 

-    796 

Clouey  V.  Ricbardson, 

- 

-    406 

Close  V.  Field,    - 

- 

536,  584 

V.  Stuart,     - 

- 

-    832 

V.  Van  Husen,     - 

. 

-    355 

Cloud  V.  Clinkerhead, 

- 

354,  355 

V.  Smith, 

. 

-    584 

Clough  V.  Unity, 

- 

-    604 

Clow  V.  Borst,  - 

- 

384,  429 

Clowes  V.  Dickinson, 

. 

302,  304 

Cluggage  V.  Swan,    - 

- 

-    804 

Clunnes  v.  Perrey,    - 

. 

-     785 

Ciute  v.  Wiggins,     - 

- 

-      70 

Coates  V.  Coates, 

- 

-    141 

Cobb  V.  I.  C.  R.  R.  Co. 

> 

82, 184 

V.  Standish, 

45,  71 

Cochran  v.  Flint, 

- 

-    164 

V.  Miller,      - 

. 

721,  727 

V.  State, 

- 

-    805 

V.  Street, 

. 

-    805 

Cochrane  v.  Tuttle,  - 

- 

747,  811 

Cocke  V.  Conigmaker, 

- 

-    663 

Cockle  V.  Flack, 

- 

645,  616 

Cockshat  v.  Burnett, 

- 

-    430 

Codwise  v.  Taylor,     - 

- 

-    829 

Coe  V.  Peacock, 

. 

-      12 

V.  Smith,     - 

- 

-    283 

Coffee  V.  Eastland,    - 

- 

-    207 

V.  Meiggs,    - 

- 

-    785 

Cogan  V.  Ebden, 

- 

-    804 

Cogdell  V.  Yett, 

. 

-      20 

Coggeshall  v.  CoggeshaU, 

-    18T 

Coggs  V.  Barnard,     - 

- 

-    471 

Cogswell's  Heirs  v.  Lyon, 

-    595 

Cohea  v.  State,  - 

- 

812,  828 

Cohen  v.  Piatt,  - 

. 

-    79S 

Coit  V.  Huston, 

. 

-    432 

V,  Stewart,  - 

. 

-    281 

Colburn  v.  Pomeroy, 

- 

185,  147 

Colby  V.  Copp,  - 

- 

-    410 

Cold  well  V.  Craig, 

- 

-    332 

V,  Wentworth,    - 

- 

-    419 

Cole  V.  Blake,    - 

- 

-    461 

V.  Charaplain  Transp.  Co.,     464 

V.  Cvirtis,     - 

- 

-    747 

V.  Justice,    - 

- 

-    291 

V.  Knight,  - 

- 

-    436 

V.  Peacock, 

. 

-    246 

V.  Pettv,      - 

- 

-    830 

V.  Sackett,  - 

871 

,  375,  428 

V.  Sands, 

. 

617,  618 

V.  Sprowle, 

- 

6,  199 

V.  Swanston, 

- 

763,  764 

V.  Trull,       - 

- 

402,  411 

V.  Wall, 

. 

-    585 

Coleman  v.  New  York 

&  N.  U. 

R.  R.  Co., 

- 

-    75S 

V.  Seymour, 

- 

-    608 

TABLE   OF   CASES    CITED. 


XXIX 


Pagea. 

Coleman  v.  Southwick,    -        -    810 

Colea  V.  BeU,      -        -        -        -    466 

V.  Kelsey,    -        -        -    603,  604 

V.  Withers,  -        -    376,  411 

Colgrove  v.  New  York,  etc.  R. 

R.  Co.,  -        -        -    213,  215 

Collard  v.  Donaldson,        -        -    357 

V.  Smith.     -        -        -        -    562 

V.  South  E.  R'y  Co.,    -      19,  100 

Collen  V.  Wright,    106,  186,  140,  145 

ColUer  V.  Gray,  -      •  -        -    618 

Colliugbourne  v.  ManteU,         -    432 

CoUingwood  v.  Irwin,       -        -     135 

Collins  V.  Adams,      -        -        -    352 

V.  Albany,  etc.  R.  R.  Co.,      810, 

813 
V.  Baumgardner,        -        -    156 
V.  Butler,     -        -        -        -    275 
V.  Cave,       -        -        -        -      95 
V.  Council  Bluffs,        -    198,  813 
V.  Delaporte,       -        -        -    108 
V.  Dorchester,     -        -        -      45 
V.  Middle  L.  Com'rs,  -        -      70 
V.Smith,     ....    258 
V.  Todd,       -        -        -        -    230 
Collins  Iron  Co.  v.  Burkam,  573,  574 
Colhun  V.  Erwin,       .        -        -    417 
Colonization  Society  v.  Reed,  -    828 
Columbia  Bridge  Co.  v.  Geisse,     798 
Colvill  V.  Reeves,       -        -        -     164 
Colvin  V.  Carter,        -        -        -    397 
V.  Carwiu.   -        -      175,  179,  183 
Colwell  V.  Faulks,      -        -        -    510 
V.  Lawrence,       -        -     490,  510 
Combs  V.  Bateman,  -        -        -    375 
Commercial  Bank  v.  Cunning- 
ham.        .        -        -        -    416 
V.  Hughes,  -        -        -    378 

V.  Ten  Evck,       .        -        -        6 
V.  Union  Bank,  -        -     349,  375 
V.  Western  Reserve  Bank,      303 
Commercial  Bank  of  Butfalo  v. 

Kortright,    -        -        -        -    253 
Commonwealth     v.     Beaumar- 

chais,  -  -  -  -  335 
V.  Bossford,  .  -  .  653 
V.  Boston,  -  -  -  -  604 
V.  Carrington,  -  -  -  807 
V.  Cook,  -  .  -  -  740 
V.  Crevor,  -  -  -  -  638 
V.  Dorris,  -  -  -  -  807 
V.  Drew,  -  -  -  -  805 
V.  Green,  -  -  -  -  658 
V.  HauDt,  -  -  -  -  340 
v.  Miller,  ...  -  429 
V.  Porter,  -  -  -  -  628 
V.  Power,  -  -  -  -  758 
V.  Sturtevant,  .  -  -  788 
V,  Todd,  -  -  -  -  285 
Commonwealth  Ins.  Co.  v.  Sen- 
nett, 477 


Pages. 
Comparet  v.  Burr,  -  -  -  7 
Composet  v.  Jolmson,  -  -  265 
Cometock  v.  Smith,  -     342,  373 

Conant  v.  Seneca  Co.  Bank,  -  403 
Condict  V.  Grand  Trunk  R'y  Co.,  61 
Confederate  Note  Case,  -  -  338 
Conger  v.  Weaver,  5,  13,  130,  160 
Conkling  v.  King,  370,  437,  428,  429 
V.  Underbill,  -  -  -  56'9 
Conley  v.  Conley,  -  -  -  375 
Connass  v.  Meir,  -  -  .  761 
Connecticut  V.  Jackson,  431,  678,  679, 

687 
Connecticut    Mut.    Ins.   Co.   v. 

Cleveland,  etc  R.  R.  Co.,     684 
V.  New  York  &  N.  H.  R.  R. 

Co., 56 

V.  State  Treasurer,     -        -    347 
Connecticut  Trust  Co.    v,    Me- 

lendy, 373 

Connell  v.  Cook,  -  -  -  175 
Conner  v.  Meyers,  -  -  -  563 
Conners  v.  Holland,  -        -    541 

Connolly  v.  Cottle,  -  -  -  207 
Connor  v.  Wiuton,  -  -  -  287 
Conrad  v.  Gibbon,  -  -  .  577 
Conroy  v.  Flint,  -  -  -  13 
V.  Warren,  -        -        -    378 

Consequa  v.  Fanning,     343,  534,  582, 

639,  677 
Constable  v.  Colden,          ■     617,  630 
Coutee  V.  Findley,     -        -        -    713 
Converse  v.  Blumrich,      -        -    430 
V.  Damariscotta  Bank,       -    762 
Conyers  v.  McGrath,         -     618,  638 
Cook  v.  Barkley,        -        -        -    334 
V.  Brockway,       -        -        -    787 
V.  Castner,  -        -        -    294,  398 
V.  Chany,     -        -        -        -    380 
V.  Charlesto^vn,  -        -        -      71 
V.  Commissioners  of  Ham- 
ilton,        -        -        -        -    118 
V.  Cook,       -        -        -        -        6 
V.  Ellis,        -        -        -    737,  738 
V.  Farinholt,        -        -        -    606 
V.  Finch,      -        .        -        -    525 
v.  Fowler,    -      546,  549,  554,  597 
V.  Halt,         -        -        -        -      10 
V.  Hartle,     -        -        -        -    239 
V.  Hopper,  -        -        -        -    211 
V.  Husted,   -        -        -        -    356 
V.  Kelly,      -        -        -        -    451 
V.  Litchfield,       -        -        -    633 
V.  Loomis,   -        -        -        -    239 
V.  Moffat,     ...        -    633 
V.  Prebble,  -        -        -    280,  289 
V.  Saunders,        -        -        -    340 
V.  Smith,      -        -        -        -    316 
V.  Soule,      -       150,  238,  279,  297 
V.  South  Park  Commission- 
ers,     604 


XXX 


TABLE   OF   CASES    CITED. 


Pages. 

Cook  V.  Wliorwood,  -        -    179 

Cooke  V.  Crawford,  -        -        -    666 

V.  Davis,      -        -        -    331,  333 

V.England,  -        -        -     198 

V.  Meeker,   -        -        -        - '  608 

V.  Wise,       -        -        -        -    607 

Cooley  V.  Rose,  -        -        -        -    677 

V.  Weeks,     -        -     447,  454,  471 

Coolidge  V,  Brigham,        -        -    139 

v.Poor,        ...        -    638 

Coon  V.  Knap,  -        -        -        -    434 

Coonley  v.  Coonley,  -        -        -    382 

Cooper  V.  Barber,      -        -        -    233 

V.  Bi^elow,  -        -     311,  313,  315 

V,  Bigly,       -        -        -     302,  305 

V.  Bissell,     -        -  -    820 

V.  Parker,    -        -        -     \tC,  249 

V.  Powell,    -        -        -    378,  380 

V.  Tappan,   -        -        -        -    563 

V.  Ulman,    -        -        -        -    417 

V.  V\^aldegrave,   -        -    634,  635 

V.  Wolf,       -        -        -      13,  346 

V.  Wright,  -        -        -        -    533 

Coore  V.  Calloway,    -        -    465,  466 

Cope  V.  Wlieelor,      -        -    643,  644 

Copes  V.  Middleton,  -        -        -    358 

Copper  Co.  v.  Copper  Mining 

Co.,  -  -  ...  133 
Coppin  V.  Braithwaite,  -  -  158 
Corbett  v.  Lucas.  -  -  433,  434 
Corbitt  V.  Bank  of  Smyrna,  323,  364 
Corbley  v.  Wilson,  -  -  -  336 
Corcoran  v.  DoU,  -  550,  604,  708 
V.  Judson,  -  -  -  -  144 
Corley  V.  Carter,  -  -  -  498 
V.  Vance,  -  -  -  -  470 
Corn  Exchange  Nat.    Bank  v. 

Nat.  Bank  of  Republic,      -    360 

Cornell  v.  Cook,        -        -        -    350 

V.  Dean,       -        -        -        -    790 

V.  Green,     -        -     470,  697,  701 

V.  Lamb,      -        -        -        .    375 

V.  Master,    -        -        -        -    436 

V.  Prescott,  -        -        -     304 

Corning  v.  Corning,        237,  830,  763 

CornwaU  v.  Gould,    -        -    373,  830 

Cortelyou  v.  Cortelyou,    -        -    763 

Corwin  v.  Walter,     -        -        -    738 

Cory  V.  Leonard,       .        _        -    678 

V.  Thames  Iron  Works  Co.,    83, 

84,  93 

Coryell  v.  Colbaugh,  -        -    743 

Cosgrove  v.  Ogden,  -        -    750,  753 

Cost  V.  Houston,        -        .        _    470 

Costelo  V.  Cave,         -        -    373,  374 

Coster  V.  Monroe  M.  Co.,  -    291 

Costigan  v,  Mohawk,  etc.  R.  R. 

Co.,      -        -        -        -        -    148 

Cotheal  v.  Talmage,     488,  489,  490, 

492,  504,  505,  506,  514,  533 

Cothren  v.  Scanlan,  -        -    459,  461 


Cotter  V.  Morgan, 
Cottou  V.  Godwin,     - 

V.  Reavill,   -        -        - 
V.  Wood,     -        .        - 
Couch  V.  Mills,  -        -        - 
V.  Steel,       -        -        - 
Counterfeit  Bank  Notes,  - 
Coursey  v.  Carington, 
Courtois  V.  Carpenter, 
Covert  V.  Gray, 
Covey  V.  Campbell,  - 
Cowden's  Estate, 
Cowdren  v.  Gardner, 
Cowdrey  v.  Carpenter, 
Cowell  V.  Woodruff, 
Coweta  Falls  v.  Rogers,     - 
Cowley  V.  Davidsou, 
Cowperthwaite  v.  Sheffield. 
Cowqua  v.  Landebrun, 
Cox  V.  Burbridge, 
V.  Cashner, 
V.  Clav, 

V.  Marlatt,  -        -     603, 
V.  Reed,       -        -        - 
V.  Smith,     -        -        - 
V.  United  States, 
v.  Vanderkleed,  - 
V.  Walker,  -        -        - 
V.  Way,       -        -        - 
V.  Wheeler, 
v.  Whitney, 
Coxe  V.  England, 
Crabb  v.  Nashville  Bank, 
Crabtree  v.  Hoganbaugh, 
Craghill  v.  Page, 
Craig  V.  Butler, 
V.  Chambers, 
V.  Craig,       -        -        - 
V.  Dillon,     -        -        - 
V.  Penick,    -        -        - 
Grain  v.  Beach,  -        -        - 
V.  Petrie,      -        -        - 
Craker  v.  Chicago,  etc.    R, 
Co.,  331,  740,  741,  746, 

Cram  v.  Cadwell, 

V.  Dresser,  -        -        - 
Cramer  v.  Metz, 

V.  WiUetts,  - 
Crane  v.  Dygert, 

V.  Hardman, 

V.  McDonald, 
Cranston  v.  ]\Iarshall, 
Craven  v.  Fickell, 
Crawford  v.  Andrews, 

V.  Branch  Bank, 

V.  Millepaugh,     - 

V.  Mills,   -    -    - 

V.  Morris,  -   -  833, 

V.  Simonton, 

V.  State,   ... 


Pages. 
134,  135 

-  703 

-  603 

-  70 
441,  443 

25,  30 
358,  359 

-  703 

-  631 
6,  197 

-  799 
303,  305 

-  823 

-  475 

-  575 

-  130 

-  759 

-  416 

-  633 

-  54 

-  277 

-  286 
670,  674 
373,  376 

-  678 

-  637 

-  733 

-  141 

-  776 

-  304 

-  330 

-  796 

-  763 
176,  303 

-  760 
568,  573 

-  13 

-  136 

-  505 

-  619 
198,  203 

57,  68 
,  R. 

750,  754, 
755 

-  436 

-  386 

-  118 

-  319 
633,  638 

-  301 

-  374 

-  156 

-  588 

-  803 

-  635 

-  434 

-  433 
834,  835 
600,  663 

-  805 


TABLE   OF   CASES    CITED. 


XXX] 


Pages. 

Pages. 

Crawford  v.  Turk,     - 

- 

- 

134 

Curry  v.  Larer, 

- 

-    525 

V.  Willing-,  - 

- 

- 

618 

V.  Lockwood, 

. 

-    635 

Cremer  v.  Higginson, 

404, 

406, 

417 

V.  Wilson,   - 

778, 

779,  784 

Crips  V,  Talvande, 

- 

- 

177 

Curtis  V.  Brewer, 

- 

505,  509 

Crisdee  v.  Bolton, 

479, 

481, 

505 

V.  Brooks,    - 

- 

-    440 

Crisfield  v.  StoiT, 

- 

140, 

145 

V.  Chicago,  etc.  R. 

R.  Co.,      788 

Crittenden  v.  Posey, 

. 

- 

614 

V.  Groat, 

. 

165,  166 

Crocker  v.  New  London 

,  etc 

!.  R. 

V.  Hannay, 

. 

-    141 

R.  Co., 

. 

- 

749 

V.  Hubbard, 

. 

373,  374 

Crockett  v.  Culvert, 

. 

. 

815 

V.  Inuevarity, 

. 

-    014 

Crockford  v.  Winter, 

. 

. 

598 

V.  Leavitt,  -      655, 

658, 

673,  674 

Croft  V.  Alison, 

. 

- 

753 

V.  Martin,    - 

- 

-    427 

Crommelin  v.  Coxe, 

- 

- 

6 

V.  Rochester,  etc.  E 

.  R.  1 

Co.,  190, 

Crommett  v.  Pearson, 

- 

- 

772 

198 

Crompton  v.  Pratt,    - 

414, 

430, 

425 

V.  Ward,     - 

. 

-    241 

Cromwell  v.  County  of  Sac, 

549, 

550 

Curtiss  V.  Greenbanks, 

447, 

454,  465. 

V.  Levitt,     - 

- 

- 

378 

466 

Croner  v.  Philling,     - 

. 

- 

473 

Gushing  v.  Drew, 

. 

-    505 

Cronouse  v.  Fitch,     - 

. 

. 

797 

V.  Longfellow,    - 

. 

-    169 

Crook  V,  McGreal,     - 

- 

- 

584 

V.  Wells,      - 

- 

-    342 

V.  Wright,    - 

. 

- 

212 

V.  Wyman, 

- 

-    420 

Crookshank  v.  Mallory, 

- 

- 

245 

Cushman  v.  Ryan,     - 

227, 

,  229,  230 

Crosby  v.  Fitch, 

. 

- 

60 

V.  Sutphen, 

- 

568,  572 

V.  New  London,  etc.  E 

:.  R. 

V.  Wadell,   - 

- 

-    231 

Co.,  -        -        - 

. 

. 

684 

Cutler  V.  Close, 

. 

-    245 

Cross  V.  Johnson, 

. 

. 

402 

V.  How,      491,  493, 

576, 

,  577,  579 

v.  United  States, 

_ 

- 

826 

V.  Johnson, 

- 

-    491 

V.  Wilkin,    - 

. 

- 

812 

V.  Smith, 

. 

-    717 

V.  Wood, 

- 

- 

571 

Cutter  V.  Reynolds,  - 

. 

-    430 

Crouch  V.  Miller, 

- 

- 

280 

Cuyler  v.  Cuyler, 

. 

220,  440 

Crouse  v.  Holman,     - 

. 

. 

786 

Crowley  v.  Hillaiy,   - 

- 

- 

345 

Dabney  v.  Dabney,   - 

- 

-    398 

V.  Villey,      - 

- 

- 

433 

Dagal  V.  Naylor, 

- 

-    342 

Crozer  v.  Pilling, 

- 

- 

705 

Daggett  V.  Pratt, 

- 

-    556 

Cioiger  v.  Armstrong, 

. 

. 

378 

Dailey  v.  Dismal  Swamp  C. 

Co.,  190 

Crum  V.  Hadley, 

. 

. 

812 

V*.  Green, 

. 

-    291 

Cinix  V.  Aldred, 

. 

. 

506 

V.  Litchfield, 

- 

-    525 

Cubbedge  v.  Napier, 

. 

. 

632 

V.  Nfw  York,  etc.  R.  R. 

Co.,  776 

Cudderback  v.  Fanely, 

. 

- 

822 

Dairs  v.  Maxwell, 

- 

-    177 

Cuddy  V.  Mavor, 

. 

77,  84 

Dakin  v.  Anderson,  - 

. 

-    358 

Cuff  V.  Borland, 

- 

. 

811 

V.  Dunning, 

- 

473,  782 

V.  Newark,  etc.  R.  E 

:.  Co 

'•J     ~ 

70 

V.  Williams,     479, 

488, 

492,  505, 

V.  Penn, 

- 

432 

507,  526 

Cullam  V.  Casey, 

- 

- 

772 

Dale  V.  Grant,   - 

. 

-      56 

Cullen  V.  Green, 

_ 

465, 

468 

V.  Sollel,      - 

. 

-    225 

V.  Sears, 

. 

- 

160 

Dalles  V.  DeForest,    - 

. 

-    399 

CuUum  V.  Bank  of  Mobile, 

291 

,  593 

D'Amoug  V.  Pillen,  - 

- 

-    286 

Culver  V.  Blake, 

- 

- 

278 

Dana  v.  Fiedler,     173, 

456, 

612,  613, 

Cumber  v.  Wane, 

- 

- 

427 

614 

,  793,  795 

Cumberland,      etc.      Corp. 

v. 

V.  Sessions, 

- 

260,  261 

Hutchings,  - 

199, 

201 

,  202 

V.  Tucker,   - 

. 

-    804 

Cummerford  v.  ]\IcAvoy, 

- 

236 

Danforth  v.  Walker, 

- 

132,  173 

Cummings  v.  Arnold, 

. 

_ 

432 

V.  Williams, 

. 

-    605 

V.  Burleson, 

- 

- 

142 

Dangerfield  v.  Welby, 

- 

-    378 

Cunningham  v.  Brown, 

. 

. 

56 

Daniel  v.  Judy, 

- 

-    827 

V.  Jones, 

. 

. 

177 

v.  HoUenback,     - 

. 

-    429 

V.  Ware, 

. 

- 

808 

v.  Park, 

. 

-    762 

Curlewis  v.  Clark, 

- 

- 

428 

Daniels  v.  Ballentine, 

. 

35,  59 

Currier  v.  Brown, 

_ 

_ 

212 

V.  Fat  h,     - 

. 

-    482 

v.  Jordan,    - 

- 

- 

468 

V.  Iseison,    - 

. 

-    531 

V.  Swan, 

- 

227; 

,  228 

V.  Saybrook, 

- 

-    776 

XXXll 


TAELE   OF   CASES    CITED. 


Pages. 

Daniels  v.  Ward,       -  -  493,  554 

Danville   Bridge  Co.  v.  Pome- 

roy, 283 

Danks,  Ex  parte,       -  -  -    456 

Darden  v.  Matthews,  -  -    816 

V.  Orgain,    -        -  -  608,  677 

Darley  v.  Crowley,    -  -  -    238 

Darling  v.  March,      -  .  -     575 

Darlington  v.  Wooster,  -  -    618 

Darnall  v.  Morehouse,  -  371,  375 

Darnell  v.  Williams,  -  245,  279 

Darrah  v.  Steamboat,  -  -    776 

Dash  V.  Van  Kleek,  -  7,  670 

Davanay  v.  Eggenhoff,  -  260,  396 

Davendorf  v.  Wirt,  -  -  -      13 

Davenport  v.  Bradley,  -  -    761 

V.  Ludlow,  -        -  -  -    317 

V.  West,       ...  -      13 

Davidson  v.  Bridgeport,  -  -    375 

V.  City  Bank,      -  -  -    376 

V.  Gohagen,         -  -  -    664 

V.  Nichols,  -        -  -  -      28 

Davies  v.  Jenkins,     -  -  -        4 

V.  Sernton,           -  -  -    489 

Davis  V.  Bangor,        -  -  -      71 

v.  Bean,       -        -  -  -    291 

V.  Bowker,           -  -  -    434 

V.  Boyd,       -        -  -  -    356 

V.  Central  R.  R.  Co.,  -    811 

V.  Chance,  -        -  -  -    826 

V.  Cincinnati,  etc.  R.  R.  Co.,  110 

V.  Coleman,         -  -  632,  633 

V.  Dicky,      -        -  -  -    265 

V.  Dudley,  -        -  -  37,  44,  45 

V.  Easley,    -        -  -  -     166 

V.  Fargo,      -        -  -  -    398 

r.  Fish,        -        -  95,  148,  154 

V.  Freeman,         -  -  -    511 

7.  Garrett,  -        -  -  33,  60 

r.  Gillett,     -        -  -  -    487 

V.  Greelv,    -        -  -  -    536 

V.  Hendrie,          -  -  -    498 

V.  Newkirk,         -  -  -    211 

V.  Nooks,     -        -  -  426,  429 

V.  Patterson,       _  -  -    281 

V.  Penton,   -        -  -  -    505 

V.  Rider,     498,  540,  561,  576,  580 

V.  Smith,     -        -  -  -    615 

V.  Spencer,           -  -  -    ^47 

V.  Stonestreet,     -  -  -    457 

Y.  Tallcot,    -        -  82,  263,  299 

V.  Thorn,     -        -  -  -    584 

V.  Walker,  -        -  -  -    618 

V.  Wilbourne,     -  -  -    147 

Dawes  v.  Winship,    -  -  -    630 

Dawson  v.  Clay,        -  -  -    604 

V.  Collins,    -        -  -  -    246 

V.  Ewing,    -        -  -  -    451 

Day  V.  Bradley,         -  -  -    780 

V.  Brett,       -        -  -  -    596 

V.  Clarke,     -        -  -  -    376 


Pages. 

Day  V.  Lafferty, 

- 

-    701 

V.  Nix, 

- 

-    292 

V.  Owen, 

. 

-    758 

V.  Perkins, 

. 

-    173  # 

V.  Woodworth,    - 

142, 

,  719,  743 

Dayton  v.  Trull, 

- 

378,  380 

Dean  v.  Harrold, 

- 

278,  290 

v.  James,     - 

- 

452,  453 

V.  Newhall, 

437, 

,  440,  441 

V.  White,     - 

. 

709,  134 

V.  Williams, 

. 

-    687 

Deane  v.  O'Brien, 

. 

•  -     762 

Deany  v.  Scriba, 

- 

-    604 

Dearborn  v.  Cross,     - 

. 

-    220 

Dearie  v.  Barrett, 

- 

697,  698 

Dearlove  v.  Herrington,  -  -  811 
De  Bernales  v.  Wood,  -  -  597 
De  Bruhl  v.  Neuflfer,  421,  681,  685 
Decatur  v.  Fisher,  -  -  -  811 
Decker  v.  Livingston,        -        -    435 

V.  Myers,  -  -  -  786,  79* 
Deckey  v.  Thompson,  -  -  303 
Dedekam  v.  Vose,  -  -  -  459 
Dederick  v  Leman,  -     426,  428 

Dedmon  v.  Williams,  -  -  376 
Deem  v.  Crunie,  .  -  .  666 
De  Ende  v.  Wilkison,  -  -  687 
De  Figanier  v.  Young,  -  -  317 
De  Forest  v.  Leete,  -  -  763,  765 
De  Goer  v.  Kellar,  -  -  -  468 
De  Groff  v.  American  L.  T.  Co.,  505 
De  Groot  v.  Darby,  -  -  -  706 
De  Havilland  v.    Bower  Bank,  597, 

618 
Dehon  v.  Stetson,  -  -  -  348 
De  La  Chaumette  v.  Bank  of 

England,  -  -  -  -  666 
Delafieid  v.  Parish,  -  -  -  790 
Deland  V.  Amesbury  Manuf .  Co.,  434 
Delano  v.  Bedford,    -        -        -      32 

V.  Curtis,  -  -  -  -  239 
Delavergne  v.  Norris,  -  -  290 
Delaware  Ins.  Co.  v.  Delaunie,    617, 

618 
Delaware  &  Hudson  Canal  Co. 

V.  Torrey,  -  -  -  -  10 
Delaware,    etc.    R.    R.    Co.    v. 

Taffey,  -  -  -  -  809 
Delcol  V.  Aj-nold,  -  -  -  111 
Delevan  v.  Bates,  -  -  -  227 
Deloach  v.  Dixon,  -  -  -  207 
DeMattos  v.  Saunders,  -  -  221 
Dempsey  v.  Bush,  -  -  -  436 
Dempster  v.  West,  -  -  -  375 
Den,  Estate  of,  -  -  -  -  687 
Denew  v.  Daverell,  -  -  245,  280 
Denham  v.  Stone,  -  -  -  570 
Denham  Bank  v.  Chickering,  -  406 
Denney  v.  New  York  Cent.  R. 

R.  Co.,  ...        -      59 

Dennis  v.  Belt,  -       -       -     279,  292 


TABLE   OF   CASES   CITED. 


XXXUl 


Pages. 
Dennis  V.  Cummins,  489, 491, 493,  502, 

504 

V.  McLauren,  -  -  398,  400 
Dennisou  v.  Lee,        -        -        -    606 

V.  Mail-,  -  -  -  .  776 
Denslow  v.  Van  Home,  -  254,  727 
Dent  V.  Dunn,    -        -        -     697,  700 

V.  State  Bank,  -  -  -  697 
Denton  v.  Denton,     -        -        -    204 

V.  Great  N.  Ry  Co.,   -     101,  156 

V.  Livingston,  -  -  .  350 
Depeau  v.  Humphreys,  644,  649,  653 
DePeyster  v.  Clarkson,  -  -  627 
Deppe  V.    Chicago,   etc.    R.   R. 

Co.,  -  -  -  -  803,  804 
Derby  v.  Gallup,        -        -        -    801 

V.  Johnson,  ...     133 

Dermott  v.  Jones,      ...    280 

V.  Non-is,  -  -  -  -  160 
Derraughn  v.  Heath,  -  -  724 
DeiTick  V.  Jones,  ...  761 
Devry  v.  Fhtner,       -        -        -      48 

V.  Handley,  ...      67 

Deny  Bank  v.  Heath,  -  -  142 
Desha  v.  Robinson,    -        -     280,  294 

V.  Smith,  -  -  -  -  589 
Desnoyer  v.  McDonald,  -  -  666 
DeSobrj'  v.  DeLaistre,  -  -  631 
Dessoll  V.  Bragniiere,  -  -  380 
DeSylva  v.  Henry,  ...  353 
DeTastill  v.  Cromsillat,  -  -  131 
Detroit  Daily  Post  v.  Me  Arthur,   71, 

735 
Detroit,  etc.  R.  R.  Co.  v.  Griggs,    290 

V.  Van  Steinburg,  -  -  788 
Devlin  v.  Mayor  of  N.  Y.,  -  118 
Devolt  V.  Atwood,  ...  574 
Dewey  v.  Bowman,  ...    541 

V.  Derby,     -        -        -        -    434 

V.  Humphrey,  ...  698 
Dewing  v.  Sears,  ...  333 
Dewint  v.  Wiltse,  -  83,  99,  160,  765 
DeVritt  V.  Barley,     -        -    787,  789 

V.  CuUings.  -        -        -    280 

V.  Greenfield,       -        -    234,  235 

DeWolf  V.  Johnson,     567,  573.  632, 

642,  643.  661 

V.  Long,  -  -  -  465,  468 
Dexter  v.  Arnold,     -        -        -    622 

V.  Man  ley,  ....    286 

V.  Spear,  -  -  -  -  17 
Dego  V.  VanValkenburgh,  -  12 
DeZeng  v.  Bailey,  -  -  -  439 
Dias  V.  Glover,  ...    594 

V.  Wanmaker,  ...  428 
Dibble  v.  Morris.  -  -  73,  721 
Diblin  V.  Murpliy,  -  -  811,  813 
Dicken  v.  Smith,  -  -  -  772 
Dickinson  v.  Barber,        -        -    803 

V.  B(n-le.      -        -        -      27,  765 

V.  Fitch  burg,       ...    802 

Vol.  I— c 


Dickinson  v.  Gould, 

V.  Hall, 

V.  Hill, 

V.  Shed, 
Dickson  v.  Surgines, 


Pages. 

-  614 

-  290 

-  457 

-  455 

-  582 


Diedrich  v.  Northwestern  R.  R. 

Co., 828 

Dierman  v.  Hackman,  -  -  430 
Digges  V.  Norris,  -  -  -  760 
Dike  V.  Green,  .  -  -  -  478 
Dill  V.  Ellicott,  -        -        -    505 

Dilliard  v.  Tomlinson,  -  -  622 
Dillingham  v.  Smith,  -  -  103 
Dillon  V.  Anderson,    134,   148,  150, 

177 

V.  Dudley,   -        -        -        -    616 

V.  McRae,    -        -        -        -    568 

Dilworth  v.  Sinderling,     -        -    667 

Dimick  v.  Campbell,        -        -    761 

Dimmick  v.  Lockwood,    -        -    594 

Dimock  v.  Saffield,  -        -        -      71 

Dinsmore  v.  Anstill,  -        -    762 

Disenhanberg  v.  Buchman,     -    266 

Dismaker  v.  Wright,        -        -    379 

Distilled  Spirits,  The,       -        -    163 

Dixon  V.  Bell,  -        -        26,  191,  198 

V.  Clark,       -     451,  470,  697,  701 

V.  Clew,        -        -        -        -      1^ 

V.  Fawcus,  -        -        -    106,  143 

V.  Parkes,     -        -        -        -    677 

Doan  V.  Wanen,        -        -        .    280 

Doane  v.  Garretson,  -        -        -    786 

Dob  V.  Halsey,   -        -        -        -    207 

Dobbins  v.  Daquid,  83,  121,  148,  155, 

238 
V.  Higgins,  -  -  -  -  608 
Dobie  V.  Larkan,  -  -  444,  698 
Dobson  V.  Espei,  ...  433 
Docker  v.  Somers,  .  -  .  172 
Dodd  V.  Tower,  -        -        -    285 

Dodds  V.  Snvder,  -  -  305,  308 
Dodge  V.  Perkins,  131,  583,  596,  616, 

618,  623 

Doe  V.  Hare,       .        -        -        .    255 

V.  Reagan,   -        .        -        -    803 

V.  Vallejo,    -        -        -        -    680 

V.  Warren,  -     676,  678,  681 

Doe  &  Lawrie  v.  Dyeball,  -    821 

Dofif  V.  Lyon,     -        -        -        -    795 

Doig  V.  Barclay,         -        -        -    681 

Doley.  Hayden,  -        -        -    373 

v.  Olmstead,        -        -        -    164 

Dolloff  V.  Danforth,  -        -        -    209 

Dolph  V.  Ferris,  -        -        -     769 

Don  V.  Lij^pman,       -        -    633,  641 

Donahue  v.  Woodbury,     -    427,  430 

Donald  v.  Christie,     -        -        -    298 

Donally  v.  Wilson,     -        -    402,  411 

Donge  V.  Pierce,         ...    233 

Donner  v.  Palmer,     -        -        -    804 

Donnery  v.  Bisa,         -        -        .    121 


XXXIV 


TABLE    OF    CASES   CITED. 


Pages. 

Dooley  v.  Smith,       326,  454,  462,  697 

V.  Watson,   -        -        -        -    477 

Doolittle  V.  D  wight,  -        -        -    372 

V.  Eddy,       -        -        -        -    794 

V.  McCullough,   -      118,  239,  242 

Doremus  v.  Bond,      -        -        _    290 

V.  Seidell,     -        -        -        -    206 

Dorn  V.  Fenno,  -        -  '     -        -    803 

Dorr  V.  Shaw,     -        -        -        -    308 

Don-ill  V.  Eaton,        -        -        -    379 

Dorsey  v.  Barbae,      -        -        -    456 

V,  GaiTaway,       _        .        .    433 

V.  Wevman,        -        -    400,  403 

Dorwin  v.  Potter,       -      148,  150,  297 

Dottera  v.  Bennett,    -        -        -    617 

Doty  V.  Brown,  .        _        _    184 

Dougall  V.  Smith,      -        -        -    372 

Dougherty's  Estate,   -        -        -    607 

Dougherty  v.  Miller,  -        -    713 

V.  Stevens,  -        -        -        -    432 

V.  Stewart,  -        -        -        -    795 

Douglas  V.  Chapin,     -        -        -    208 

V.  Mil, 339 

V.  Patrick,  -      451,  452,  453,  457 

Douglass  V.  Rowland,        -        -    135 

V.  Touse,       -        -        -        -    234 

Dounce  v.  Dow,  -        -        .    297 

Douty  V.  Bird,     -        -        -        -    123 

Dow  V.  Adams,  -        -    607,  621 

V.  Clark,       -        -        -        -    204 

V.  Hicks,      -        -        -        -    356 

V.  Humbert,        -       13,  240,  250 

V.  Tuttle,      -        -        -        -    441 

Dowans  v,  Dowans,  -        -        -    325 

Dowd  V.  Sea  veil,        -        -        -    763 

Dowes  V.  Pinner,        ...    586 

Downer  v.  Sinclair,  ...    347 

Downey  v.  Beach,  475,  493,  494,  561, 

581 
V,  Hicks,      -        -        .        -    375 
Downing  v.  JBrown,  -        -        -    233 
V,  Dean,       -        -        -        -    828 
Downman  v.  Downman,  -    325,  334 
Downs  V.  Phoenix  Bank,  -    497 

Dows  V.  Morewood,       414,  415,  419, 

423 
v.  National  Exch.  Bank,  -    629 
Dox  V.  Dey,        -        -      617,  761,  762 
Doxbui'y  V.  Vermont,  etc.  R.  R. 

Co., 134 

Doxey  v.  Miller,        ...    622 

Doyle  V.  Teas,    ....    465 

Dozier  v.  Jarman,     -        -        -    817 

Draffner  v.  Boonville,       -        -    420 

Drake  v.  Baker,         -        -    130,  159 

V.  Cockroft,        -        -        -    286 

V.  Latham,  -        -        -        -    675 

V.  Lowry,    -        -      568,  571,  574 

V.  Mitchell,  -        -        -     372 

Draper  v.  Hitt,  -        -        -    429 

V.  Pierce,     -        -        -        .    464 


Pages. 
Draper  v.  Sweet,  -  -  -  151 
Dresser  v.  Dresser,  -  -  187,  203 
Dresser  Manuf .  Co.  v.  Waterson,  169, 

225 

Dressier  v.  Davis,      ...    762 

Drew  V.  Fowle.  ...    265 

V.  Sixth  Av.  R.  R.  Co.,    190,  190 

Driggers  v.  Bell,        -        -    612,  6ia 

Driggs  V.  D  wight,      -        -        -    134 

Driscoll  V.  Damp,      ...    3;')4 

V.  Tannock,         ...    573 

Driver  v.  Fortner,      ...    409 

V.  Maxwell,         -        -        -    148 

V.  W,  U.  R.  R.  Co.,    -        -    148 

Drohm  v.  Brew^er,     -        -        -    721 

Druse  v.  Wheeler,     ...    770 

Duane  v.  Simmons,  -        -        -    819 

Du  Belloix  v.  Waterpark,     545,  549 

Dubois  V.  Beaver,      ...    771 

V.  Glaub,     -        -        -        -    79(> 

V.  Hermance,      -        -    136,  142 

Dubuque,  etc.  Asso.  v.  Dubuque,  49, 

95 

Dudley  v,  Kennedy,  -        -        6 

V.  Reynolds,        -        -    493,  554 

V.  Stiles,      -        -        -        -    348 

Duerson  v.  Bellows,  .        -        -    829 

Dufendorf  v.  Gage,  -        -        -    796 

Duffield  v.  Elwees,    -        -        -    356 

V.  Scott,      -        -        -    135,  143 

Duffey  V.  Shocky,     -     489,  490,  526 

Dugan  V.  Anderson,         -        -    176 

V.  Sprague,  -        -        -    380 

Dullen  V.  Taylor,       -        -        -    111 

Dumont  v.  Smith,     .        -        -    763 

Dunbar  v.  Lindenberger,  -    775 

Duncan  v.  Bloomstock,     -        -    315 

V.  Brown,    -        .        -        -    231 

V.  Finnyham,      -        -        -    810 

V.  Harris,     -        -        -        -    850 

V.  Helm,      ....    645 

V.  Markley,         -        -     187,  199 

V.  Stanton,  -        -        -        -    297 

V.  United  States,        -        -    637 

Dung  v.  Parker,         ...        6 

Dunham's  Appeal,     -        -        -    803 

Dunham  v.  Jackson,         -     455,  456 

Dunkle  v.  Kocher,     -        -        -      54 

Dunlap,  A.  R.,  The,  -        -     415,  420 

Dunlap  V.  Hayden,    .        .        -    819 

V.  Snyder,    -        -        -        -    802 

Dunlop  V.  Gregorv,  -        -     505,  526 

Dunn  V.  Hall,     -  "     -        -        -    803 

V.  Johnson,  ...     238 

V.  O'Neal,     ....    165 

Dunne  v.  Mastick,     .        -        -    675 

Dunning  v.  Humphrey,    -     141,  697 

Dunniston  v.  Imbrie,         -        -     696 

Dunphv  v.  Whipple,  -        -    246 

Dupay"v.  Clark,         -        -        -    383 

DuiJeroy  v.  Johnson,         -        -    775 


TABLE   OF   CASES   CITED. 


XXXV 


Pages. 
Diiran  v.  Ayer,  -        _        _    549 

Durant  v.  Iowa  Co.,  -        -    684 

Durell  V.  Wendell,  -  -  -  441 
Durham  v.  Waddingtou,  -  -  430 
Durkee  v.  Mott,  -        -        -     13B 

Durst  V.  Burton,        -        -     796,  797 

V.  Swift,  -  -  -  -  504 
Dustin  V.  McAndrew,  -  108,  173 
Dutchess    County    M.     Co.    v. 

Davis, 820 

Dutton  V.  Beers,  -  -  -  721 
Duxbury  v.  Vermont,  etc.  R.  R. 

Co.,       -        -        -        -     136,  137 
Dwight  V.  County  Commission- 
ers,     786 

V.  Webster,  -        -        -    691 

Dwinell  v.  BroTsm,  -  -  479,  4S3 
Dyer  v.  Covington,    -        -        -    599 

V.  Denham,         -        -        .    747 

V.  Hunt,       -        -        -        -    631 

V.  Post,  -  -  -  -  239 
Dyott's  Estate,  -•      -     382,383 

EaTnes  v.  Prentice,  -  -  -  769 
Earl  V.  Beele,  -  -  -  -  292 
Earl  of  Chesterfield  v,  Jansen,    491, 

5 '^5 
Earl  of  Mansfield  v.  Ogle,  598,  008 
Earl  V.  Tupper,  -  -  -  73,  743 
Early  v.  Flaunery,  -  -  399,  406 
V.  Friend,  -  -  -  -  621 
V.  Moore,  -  -  -  -  828 
Easley  v.  Brand,  ...  575 
East  V.  Chapman,  -  -  -  233 
East  India  Co.  v.  Glover,  -  -  779 
East  Saginaw,  etc.  Co.  v.  Bohn,  64 
Eastern    Counties    R'y    Co.     v. 

Broom,         .        _        .        .    7,50 

Easterwood  v.  Quin,  -        -    234 

Eastin  v.  Vandorn,    -        -     536,  600 

Eastland  v.  Longshorn,     -     455,  457 

Eastman  v.  Amoskeag  M.  Co.,      788 

V.  Cooper,    -        -        -        -     184 

V.  Harris,     -        -        -        -     168 

V.  Porter,     -        -     376,  377,  378 

V.  Ramsey,  -        -        -        -    204 

V,  Rapids,    -        -        -        -    455 

Easton  v.  Penn.   &  Ohio  Canal 

Co.,      -        -        -        -     504,  518 

Eaton  V.  Bell,     -        -        -     586,  685 

V.  Benton,   -        -        -        -    354 

V.  Boissannault,  -        -        -    549 

V.  Boston,  etc.  R.  R.  Co.,    33,  70 

V.  Emerson,         ...    444 

V.  Lincoln,  -      206,  431,  432 

V.  Lvman,   -        -        14,  140,  815 

V.  Melius,     -        -      663,  796,  800 

V.  WooUey,  -        -        -     280 

Eaves  v.  Henderson,  -     347,  349 

Ebenhardt's  Appeal,  -        -    308 

Echelberger  v.  Morris,      -        -    440 


Pages. 
Eckert  v.  Wilson,  -  -  -  617 
Eckles  v.  Carter,  -  -  -  280 
Eddowes  v.  Hopkins,  -  -  819 
Eddy  V.  O'Hara,  -  -  461,  463 
Edelrnan  v.  St.  Louis  T.  Co.,  -  721 
Ederlen  v.  Thompson,  -  -  807 
Edes  V.  Goodridge,  -  -  -  687 
Edgcombe  v.  Rodd,  -  -  -  3S5 
Ekimondson  v.  Hyde,  -  -  329 
Edmunds  v.  Digges,  -  358,  364 
Edower  v.  Hopkins,  -        -    808 

Edson  V.  Dellage,      -        -        -    396 
Educational    Association,   etc. 

V.  Hitchcock,      -        -        -    817 

Edwards  v.  Beach,   -        -        -      72 

V,  Bodine,    -        -        -    141,  290 

V.  Chapman,        ...    433 

V.  Farmers'  F.  &  L.  Ins.  Co.,  471 

V.  Leavitt,  -        -        -        -    739 

V.  Reynolds,         ...    821 

V.  Tailmadge,      -        -        -    290 

V.  Todd,       -        -     281,  291,  292 

v.Truelock,         -        -        -    376 

V.  Vere,        -        -        -        -    598 

V.  Weister,  -        -        -        -    762 

Effiuger  V.  Henderson,     -        -    406 

Eggleston  v.  Knickerbocker,  853,  434 

V.  Macaulay,       ...    614 

Ehle  V.  Purdy,  -        -        -    207 

Ehrensperger  v.  Anderson,      -    320 

Eichorn  v.  Le'  Maitre,       -        -    780 

Eisenhart  v,  Slavmaker,  -        -    206 

Ekins  V.  East  India  Co.,  342,  629,  633 

Elbin  V.  Wilson,        -        -        -    721 

Elbinger  Actien  Geselschaff t  v. 

Armstrong,  -        -        -      87 

Elder  v.  Sabin,  -        -        -    142 

Eldred  v.  Leahy,  -  -  279,  285 
Eldridge  v.  L.  I.  etc.  R.  R.  Co.,  63 
V.  Wadleigh,  -  -  -  140 
Elfett  V.  Smith,  -  -  -  799 
Elicotville,  etc.  Plank  Road  Co. 

V.  Buffalo,  etc.  R.  R.  Co.    -      13 
Elizabethtown,  etc.    R.   R.   Co. 

V.  Georgenehsee,     -        -    525 

V.  Pallenger,        ...     118 

Elkin  V.  Moore,         -        -    596,  606 

Elkinton  v.  Newman,       -        -    352 

Ellege  V.  Todd,  -        -        -    804 

Ellery  v.  Cunningham,     -        -    622 

EUiot  v.  Heath,  -        -        -    279 

v.  Minott,    .        -        -        -    615 

V.  Sleeper,   -        -        -        -    370 

V.  Van  Buren,     -        -        .    736 

Elliott  V.  Herz,  -        -        -    724 

EUis  V.  Betzer,  ...        -    430 

V.  Craig,      -        -        -     533,  703 

EUis  V.  Duncan,        -        -        -    4,  5 

V.  London,  etc.  R'y  Co.,     -      70 

V.  McLemoor,     -        -        -    207 

Elminger  v.  Drew,    -        -        -    265 


xxxvi 


TABLE   OF    CASES    CITED. 


Pages. 

Ellsworth  V.  Central  R.  R.  Co.,     811 

V.  Fogg,       -        .        -        -    429 

V.  Potter,     -        -        -        -    721 

V.  Thompson,      -        -     227,  229 

Elmer  v.  Loper,         .        -        -    164 

Elwell  V.  Bradham,  -        -        -    815 

Elvvood  V.  Dieiendorf,      -        -    136 

Ely  V.  McKniglit,       -        -        -    348 

V.  Withersx>oon,  -        -    541 

Embleu  v.  Myers,      -       72,  721,  742 

Emblin  v.  Dartnell,  -        -        -     820 

Embree  v.  Hanna,     -        -        -    310 

Embrey  v.  Owen,       -        -  10,  13,  15 

Emerie  v.  Tarns,        -        -        -    604 

Emerson  v.  Atwater,         -        -    679 

V,  Baylies,  -        -        -        -    435 

V.  Howlaud,        -        -        -    131 

V,  Maffet,     -        -        -        -    339 

V.  Providence  Hat  M.  Co.,      374 

V.  White,     -        -        -        -    704 

Emery  v.  LaveU,       -        -     106,  238 

Emily  B.  Sonder,  The,      -     330,  333 

Emly  V.  Lye,      ...        -    304 

Empson  v.  Griffin,    -        -        -    819 

Enders    v.     Board    of     Public 

Works,  -  -  173,  614,  615 
Eugel  V.  Fitch,  -        -        -    160 

Engler  v.  Ellis,  -        -        -    550 

Englisli  V.  Carney,    -        -        -    417 
V.  Harvey,  -        -        -    623 

V.  Smock,  -  -  -  -  541 
Ennis  v.  Shelley,  .  .  -  219 
Eno  V.  Crooke,  -        -     712,  713 

Epperlev  v.  Bailey,  -  -  277,  283 
Erd  V.  Chicago,  etc.  R.  R.  Co.,  801 
Erlanger  v.  Avegno,  -        -    829 

Ernest  v.  Brown,  -  -  -  808 
Erwin  v.  Devine,  -  -  -  208 
V.  Shaffer,  -  -  -  -  397 
Eslow  V.  Mitchell,  -  448,  449,  471 
Esmond  v.  Benschoten,  489,  490,  504, 

505 
Estabrook  v.  Moulton, 
Estebene  v.  Estebene, 
Estell  V.  Myers, 


Estep  V.  Fenton, 
Esterly  v.  Cole, 
Estus  V.  Baldwin, 
Eten  V.  Luyster, 
Etheridge  v.  Birney, 
Etnyre  v.  McDaniels, 
Evans  v.  Beckwith,  - 
V.  Clark,      - 
V.  Drummond,    - 
V.  Haefuer, 
V.  Howes,    - 
V.  Irwin, 
V.  Negley,   - 
V.  Powis,     - 
V.  Root, 
V.  Trenton, 


277, 


677 

421 
293 
277 
582,  614,  618 

-  832 
20,  75 

-  588 

-  550 

-  531,  618 

-  636,  066 

-  428 

-  191 
358 
773 
570 
428 
131 

7 


663, 


Pages. 
Evans  v.  Wells.  -        -    433,  434 

V.  White,  -  -  -  -  663 
Evansville,  etc.  R.  R.  Co.  v.  Fitz- 

patrick,        _        .        .        .    795 

Evarts  v.  Nason's  Estate,  -        -    593 

Eve  V.  Moseley,         -        -        -    427 

Everard  v.  Hopkins,  -        70,  95 

Everett  v.  London  Assurance,        42 

V.  Saltus,     -        -        -        -    456 

V.  Vendryes,        -        -    635,  638 

Evertson  v.  Booth,    -        -        -    305 

V.  Sawyer,  -        -        -        -    813 

V.  Tappen,  -        -        -        -    593 

Ewart  V.  Kerr,  -        -        -    280,  281 

Ewen  V.  Terry,  -        -        -     316 

Ewing  V.  Blount,      -        -        -    239 

V.  Coddington,    -        -    775,  776 

V.  Leatou,    -        -        -        -    826 

Exchange  Bank  of  Vu-ginia  v. 

Knox,  -----  346 
Exeter  Bank  v.  Gordon,   -        -    383 

Fabbrecotti  v.  Launitz,  279,  283,  298 
Fabbri  v.  Kalbfleisch,  -  -  333 
Fagen  v.  Davison,  -  -  -  763 
Fail  v.  McRee,  -  -  -  -  118 
Fairbanks  v.  Kerr,     -        -        -      57 

V.  Witter,  -  -  -  238,  743 
Fairchild  v.  Hooley,  -  -  410,  419 
Fairlie  v,  Lawson,  -  .  -  599 
Fairman  v.  Fluck,  -  -  -  286 
Fairmount  R.  R.  Co.  v.  Slater,  211 
Fake  v.  Eddy,  -  -  -  -  677 
Fales  v.  Uemenway,  -  176,  187 
Falk  V.  Waterman,  -  -  -  743 
Fallon  V.  Manning,  -  -  -  210 
Fanning  v.  Consequa,     633,  639,  663 

V.  Dunham,  _        -        -    563 

Fant  V.  Miller,  -  -  -  -  633 
Parish  v.  Reigle,  -  -  -  810 
Farley  v.  Moore,  -  -  -  677 
Farmer  v.  Lewis,        -        -        -        5 

V.  Stewart,  -  -  -  204,  205 
Farmers'  Bank  v.  Blair,     -    434,  439 

V.  Groves,  -  -  -  -  433 
Farmers',  etc.  Bank  v.  Franklin,  403 
Farmers'    &    Citizens'   B:  nk  v. 

Sherman,  -  -  -  -  396 
Farmers'  &  Mechanics'  Bank  v. 

Kingley,  .  -  -  -  350 
Farmers'    &  Traders'    Bank   v, 

Harrison,  -  -  -  569,  570 
Farmers',  etc.  Co.  v.  Mann,  -  583 
Faruham  v.  Hotchkiss,  -  -  390 
Farnsworth  v.  Garrard,  -  245,  261 
Farquhar  v.  Farley,  -        -        -    597 

V.  Morris,  -  -  538,  596,  618 
Farr  v.  Chandler,       -        -        -    576 

V.  Roscoe,  -  -  -  -  234 
Farrant  v.  Barnes,  -  -  -  29 
Farrington  v.  Payne,         -       -    177 


TABLE   OF   CASES   CITED. 


XXX  vu 


Pages. 

Farwell  v.  Grier, 

-    375 

V.  Meyer, 

-      572,  573,  574 

V.  Price, 

-    131,  174 

V.  Salpaugh, 

-    375 

V.  Warren,  - 

-    731 

Fashokl  v.  Reed, 

-    587 

Fatlock  V.  Harris, 

-    348 

Faunce  v.  Burke, 

-    477,  518 

Fauutleroy  v.  City  of  Hannibal,  5o0 

Faveace  v,  Bennett,  -        -        4,   110 

Faw  V.  IMarstella,       -        -        -    3;J4 

Fay  V.  Lovejov,         -     403,  408,  422 

V.  Parker,"   -        -     717,  730,  738 

V.  Trav.  etc.  R.  R.  Co.,        -        8 

Feeter  v.  Heath,         -        -        -    617 

Feize  v.  Thompson,   -        -        -    808 

Feidman  v.  Blier,       -        -        .    411 

Fellows  V.  Mitchel,    -        -        -    164 

V.  Stevens,  -        -    437,  430 

Felter  v.  Beale,  -        -        -    196 

Fennell  v.  Meaux,      -        -    383,  384 

Fenton  v.  Clark,         -        -        -    2^Z 

Ford  en  V.  Jones,        -        -        -    371 

Ferguson  v.  Bassett,  -        -    315 

V.  Ferguson,         -        -    187,  203 

V.  Fvffe,       -        -        -    586,  633 

V.  State  Bank,     -        -        -    822 

V.  Sutphen,  -        -        _    5(59 

Fernandez  v.  Dunn,  -        -        -    594 

Fero  V.  Ruscoe,  -        -        -    233 

Ferrand  v.  Bonchall,  -        -    160 

Ferrer  v.  Beale,  -        -        -      17 

FerriU  v.  Simpson,     -        -        -    805 

Ferris  v.  Comstock,  111,  130,  134, 194 

Ferry  v.  Ferry,  -        -        -        -    680 

Fessler  v.  Love,         -        -        .    177 

Fetter  v.  Beale,  -        -        -    179,  190 

Ficklin  v.  Zwart,      -      568,  571,  574 

Field  V.  Des  Moines,  -        -        -        5 

V.  HoUand,      401,  413,  415,  423, 

424 
V.  ]\Iavor,  etc.  of  New  York,  388 
V.  NeWport  &  R.  Co.,         -    460 
Fieldon  v.  Lohens,     -        -        -    207 
Fields  V.  Mont,  -        -        -        -    813 
Filer  v.  New  York  C.  R.  R.  Co.,    63, 
159,  187,  196 
Files  V.  ]\Iagoon,        ...    209 
Fill  V.  McHenry,        -        -        -    427 
Fillibrowne  v.  Hoar,  -     106,  7;:;3 

Fillmore  v.  Gamble,  -        -    403 

Final  v.  Backus,  -  -  7,  164 
Finch  V.  Miller,  -        -    461,  463 

Finckle  v.  Evers,  -  -  134,  143 
Findiayv.  Hall,  -  -  631,  643 
Fink  V.  Justh,  -  -  -  -  770 
Fiuuerty  v.  Tipple,  -  -  -  230 
First    Ecclesiastical    Society  v. 

Loomis.        .        .        z    "673,  674 
First  National  Bank  v.  Morris,    647, 

653 


Pages. 

Firth  V.  Purvis,         -        -        .    457 

Fish  V.  Dodge,  -        -        -        -    795 

V.  Foley,      -        -      186,  202,  203 

Fishburne  v.  Sanders,       -     343,  704 

Fishel  V.  Fishel,         -        -     357,  440 

Fishell  V.  Winans,     -        -        -    614 

Fisher  v.  Anderson,  -     493,  576 

V.  Barrett,  -        -        -        -    518 

V.  Bidwell,         493,  503,  553,  648 

V.  Fellows,  -        -        -    143 

v.  Fisher,     -        -        -        -    380 

v.  Gaebel,    -        -        -     150,  151 

V.  Marvin,   -        -        -        -    37g 

V.  Otis,         -        -        -     493,  57G 

V.  Patterson,        -        -        -    234 

V.  Richards,         -        -        -    238 

V.  Sargent,  -        -     583,  585 

v.  Shaw,      ....    477 

V.  Valde  Travers   Asphalts 

Co., 140 

Fisk  V.  Baunette,       -        -        -    58!) 
v.  Chesterfield,   -        -        -    604 
T.  Fowler,   -        -        -     505,  512 
V.  Grav,       -        -        -        -    492 
V,  Holden,  -        -        -        -    828 
v.  Stevens,  -        -        -     380,  382 
V.  Tank,      -        -      134,  278,  280 
Fitch  V.  Remer,         -        -     643,  645 
v.  Sutton,    -        -     427,  439,  432 
Fitchburg  R.   R.    Co.   v.    Free- 
man,        -        -        -        -    790 
T.  Hanna,    -        -        -     280,  281 
Fitroy  v.  Guillim,      ...    562 
Fitzgerald  v.  Caldwell,     -        -    693 
v.  Jones,      -        -        -        -    633 
V.  Smith,     -        -        -        -    436 
V.  Stewart,  -        -        -    231 

Fitzgibbon  v.  Brown,  -  -  253 
Fitzhugh  V.  McPherson,  -  -  678 
Fitzpatrick  v.  Cottingham,  498,  504, 

525 
Fitzsimmons  v.  Baum,  -  -  494 
Flack  v.  Neill,  -  -  -  -  743 
Flanders  v.  Atkinson,  -  -  762 
Fleck  V.  Witherby,  -  -  -  123 
Fleckner    v.    Bank    of    United 

States,  -        -       -       -    563 

Fleet  V.  Hollenkemp,        -        -    721 

Fleming  v.  Beck,       -        -        -    109 

V.  Langton,  _        -        -    775 

V.  Nail,        -        -        -        -    772 

Fletcher  v.  Burroughs,     -        -    234 

V.  Dvche,     -      492,  504,  505,  530 

V.  Pynsett,  -        -        -        -     621 

V.  Tayleur,  -        83,  128,  130,  764 

Flever  v.  Edwards,   -        -        -     576 

Flinn  v.  Barber,        -        -        -    596 

Flint  V.  Clark,   -        -        -       12,  346 

V.  Lyon,       ...        -    279 

V.  Steadman,       .        -        -    594 

Florence  v.  Jennings,       -        -    555 


XXXVIU 


TABLE    OF   CASES   CITED. 


Pages. 

Flournoy  v.  Childress,      -        -    761 

Flower  v.  Adam,       -        -        41,  70 

V.  Elwood,  -        -    370,  377 

Floyd  V.  Hamilton,  -        -        -    724: 

Floyer  v.  Edwards.  -        -        -    493 

Flureau  v.  Tliornhill,       -    130,  160 

Flying  Fish,  Tlie,       -        -        -      70 

Flynn  v.  Trask,         -        -        -    151 

Foard  v.  Atlantic,  etc.  R.  R.  Co.,   110 

Foden  v.  Sharp,        -        -        -    064 

Fogg  V.  Sawver,      333,  358,  364,  370 

Foley  V.  McKeegau,  -     160,  503,  525 

Folger  V.  Fields,        -        -        -    826 

Foikes  V.  Chadd.       -        -        -    791 

FoUiott  V.  Ogden,      -        -        -    658 

Folsom  V.  Apple  R.  L.  D.  Co.,      194 

V.  Clemence,        -        -    177,  183 

V.  Plumer,  -        -        -        -     538 

V.  Underhill,        -        -        -     766 

Fonville  v.  ]\Iouroe,  -        -        -    602 

Foord  V.  Ford,  -        -        -        -    461 

Foot  V.  Brown,  ...     383 

Foote  V.  Blanchard,        614,  615,  618 

V.  Marrell,  -        -        -        -    169 

V.  Sprague,  -        -    493,  494 

Forbes  v.  Howard,    -        -        -    804 

Ford  V.  Beach,  -        -        -    440 

V.  Jones,      -        -        -        -    159 

V.  Kelsev,    -        -        -        -    709 

V.  Mitchell,  -        -        -    376 

V.  Smith,     -        -        -        6,  802 

V.  Williams,        -        -    211,  238 

Forelander  v.  Hicks,        -    400,  403 

Forman  v.  Forman,  ...    678 

V.  Miller,      ...        -    280 

Forsyth  v.  Palmer,  -        -        -    238 

V.  Wells,      -        -        -        -    185 

Fort  V.  Gooding,        ...    355 

V.  Union  P.  R.  R.  Co.,        -     187 

Fosdick  V,  Van  Husan,     -    447,  454 

Foster  v.  Alamon,     ...    373 

V.  Beals,       -        -        -        -    383 

V,  Caldwell,         -        -        -    809 

V.  Dowlen,  -        -        -    429,  432 

V.  Drew,      ...    459^  454 

V.  Elliott,     ....        9 

V.  Essex  Bank,    -        .        -    749 

V.  Harl-is,     -        -        -    533,  675 

V.  Hdl,         -        -        -    372,  375 

V.  Jackson,  ...    809 

V.  McGraw,         -        -        -    423 

s\  Purdy,     -        -        -    380,  441 

V.  Smith,      -        -        -    778,  779 

V.  Trull,       -        -        -        -     347 

V.  Weston,  ....    597 

Fouke  V.  Fleming,    ...    668 

Fowle  V.  N.  H.  etc.  R.  R.  Co.,      191 

V,  New  Haven  Co.,     -        -    191 

Fowler  v.  Bush,        -        -    374,  376 

V.  Chatterton,     -        -        -    669 

V.  Chichester,      -        -        -    746 


Pages. 

Fowler  v.  Davenpoi't,        -        -    629 

V.  Garret,     ....    573 

V.  Gilman,   -        -        -        .    281 

V.  Hoffman,         ...    164 

V.  Payne,     -      279,  280,  286,  293 

V.  Shearer,  -        .        -        -    353 

V.  Throckmorton,       -        -    536 

V.  Ward,      -        -        -        -    496 

Fowlker  v.  Webber,  -        -    763 

Fox  \.  Davis,     ....    237 

V.  Harding,  77,  84,  118,  130 

V.  Lowely,  ....     594 

V.  Stevens,  -        -        -        -    721 

France  v.  Gaudet,     -        -      92,  130 

Francis  v.  Baker,      ...    267 

V.  Castleman,      ...    618 

V.  Schoellkopf,     6,  343,  245,  765 

V.  Wilson,    -        -        -        -    599 

Frank  v.  Calhoun,     -        -        -    330 

Fraukern  v.  Trimble,        -        -    204 

Frankford,  etc.  Co.  v.  R.  R.  Co.,      6 

Frankfort  Bridge  Co.  v.  Wdl- 

iams, 822 

Franklin  v.  Frith,      -        -        -    625 

V.  Smith,     ...        0,  154 

Eraser  v.  Berkeley,   -        -        -    230 

V.  Bunn,      -        -        -        -    400 

Frasier  v.  Lomax,     -        -        -    776 

Fray  v.  Voules,  -        -        -      10 

Frazer  v.  Little,         -        -    453,  599 

Frazier  v.  Cushman,  -    444,  698 

V.  Hvland,  -        -        -        -    421 

v.  Warfield,         -        -    633,  633 

Freakley  v.  Fox,        ...    357 

Frederick  v.  Gilbert,  -        -    761 

Freeland  v.  Edwards,        -        -    618 

Freeling  v.  Schroeder,      -        -    598 

Freeman  v.  Benedict,         -        -     375 

V.  Fleming,         -     470,  697,  704 

v.  Fluck,      -        -        -        -    286 

V.  Tiusley,   -        -        -        -    231 

Freese  v.  Crany,        -        -        -      13 

V.  Tripp,      -        -      722,  738,  749 

French  v.  Bent,         -        -        -      13 

V.  French,  -        -      589,  596,  598 

V.  Hall,         -        -        -        -    031 

V.  Kennedy,        -        -    089,  690 

V.  Marcel,    -        -        .        -    478 

V,  Parish,     -        -      134,  135,  143 

V.  Piper,      -        -        -        -    798 

V.  Price,      -        -        -    373,  374 

V.  Vining,  -      134,  148,  154 

Frey  v.  Demarest,     .        -        -    164 

Fried  v.  New  York  C.  R.  R.  Co.,      7 

Friedlauder  v.  Pugh,        -        -    133 

Friedley  v.  Schultz,  .        -        -    763 

Fries  v.  Mack,    -        -        -    816,  818 

V.  Watson,  .        -        -        -    606 

Friesch  V.  Coler,        -        -    260,  393 

Frinch  v.  Brook,        ...    457 

V.  Peper,      -        -        -        -    803 


TAELK    OF    CASES    CITED. 


XXXIX 


Frink  v.  Green, 
V.  Potter,     - 
Frisbee  v.  Hoflfnagle, 
V.  Larued,   - 
V.  Liudley,  - 
Fritz  V.  Stover, 
Fromme  v.  Jones, 
Frontier   Banli   v. 


Pages. 
437,  439,  441 

-  63 

-  268 
-  372,  431 

-  376 

-  339 

-  818 
322,  364, 

365,  370 
148,  176,  195 

-  352 

-  163 

-  624 
131 

•  778 

-  739 

-  780 
R.  R.  Co.,  118, 

130,  196 
Fugure  v.  Mutual  Society  of  St. 

Joseph,        -        -        -        -    204 

Fullam  V.  Cummings,       -        -        7 

V.  Stearns,  -        -        -        -      14 

V.  Valentine,       -        -        -    441 

Fuller  V.  Chaniberlain,     -        -    823 

V.  Crittenden,      -        -        -    377 

V.  Turner,    -        -        -        -      66 

Fullerton  v.  Kelliher,        -        -    830 

Fulsome  v.  Concord,  -        -     198 

V.  McDouougii,   -        -        -    505 

Fultz  V.  Wvcotf,  24,  73,  123,  130 

Funck  V.  Buck,  -        -     493,  494 

Funk  V.  Coe.      -        -        -        -    727 

Furman  v.  Gibson,     -        -        -    317 

Furniss  v.  Hudson  River  R.  R. 


Morse, 


Frost  V.  KJiight, 

V.  Martin,    - 

V.  Willard,  - 

V.  Winston, 
Frothingham  v.  Everton, 
Froust  v.  Burton, 
Fry  V.  Bennett, 
Frye  v.  Hinckley, 

V.  Maine,  etc 


Co.,      - 

- 

- 

191 

Fury  V.  Stone,   - 
Fydele  v.  Clark, 

- 

" 

815 
371 

Gaffney  v.  Chapman, 
Gage  v.  Lewis,  - 

- 

427, 

431 
372 

v.  Phelps,     - 
v.  Rogers,    - 

- 

- 

277 
760 

Gaillard  v.  Ball, 

- 

632, 

663 

Gainsford  v.  Carroll, 

. 

- 

151 

Gaitliers  v.  Blowers, 

- 

228, 

230 

Gale  V,  Eastman, 

- 

. 

662 

V.  Leckie,     - 

- 

- 

119 

Galena,   etc.   R.  R.  Co. 

1    V. 

Ap- 

pleby,  -        -        r 
Galesworthy  v.  Strutt, 

: 

760 
526 

Gallagher  v.  Roberts, 

- 

_ 

382 

Galliano  v.  Pierre, 

. 

- 

328 

Galloway  v.  Courtnej^ 
Gaily  v.  Reniy,  - 

- 

: 

233 
493 

Gamble  v.  Cummins, 

- 

- 

388 

Gambril  v.  Doe, 

- 

493. 

576 

Gammel  v.  Skinner, 

- 

615, 

616 

Gammon  v.  Abrams, 

607 

,  612, 

614 

V.  Howe, 

- 

486, 

505 

Ganson  v.  Madigan,  - 

- 

- 

173 

Pages. 

Ganssly  v.  Perkins,   -  -  -    749 

Gantier  v.  English,    -  -  -    700 

Card  V.  Stevens,        -  -  401,  423 

Gardner  v.  Barnett,  -  -  -    549 

V.  Callender,        -  -  -    'SiS 

V.  Gorham,          -  -  871,  375 

V.  Heartt,     -        -  -  ^-        6 

Garfield  v.  Huls,        -  -  -    280 

Garland  v.  Wholeham,  -  -    739 

Garlick  v.  James,      -  -  -    383 

Garnett  v.  Macon,      -  -  440,  441 

Garrard  v.  Danson,    -  -  -    629 

V.  Dollar,     -        -  -  -    778 

Garret  v.  Car,     -        -  -  -    628 

Garrett  v.  Logan,      -  -  -    142 

Garrick  v.  Jones,       -  -  -    315 

Garthe  v.  Cooper,      -  -  -    568 

Gascoyne  v.  Smith,  -  -  -    292 

Gaskin  v.  Wales,       -  -  505,  509 

Gaskins  v.  Gaskins,  -  -  -    607 

Gaslin  v.  Woodson,  -  -  -    280 

Gass  V.  Stinson,         -  -  408,  410 

Gassett  v.  Andover,  -  -  -    464 
Gaston  v.  Barney,      -      399,  401,  423 

Gates  v.  Adams,        -  -  -    303 

V.  Blincoe,   -        -  -  -        6 

V.  Meredith,        -  -  -    232 

V.  Shults,     -        -  -  -    430 

Gatesworth}'  v.  Scott,  -  -    505 

Gatham  v.  Castleberry,  -  -    279 

Gavin  v.  Anman,       -  -  437,  431 

Gavinzell  v.  Crump,  -  -    339 

Gay  V.  Gay,        -        -  -  -    314 

Gaylord  v.  Van  Loan,  -  -    618 

Gear  v.  Shaw,     -        -  -  -    142 

Gearhart  v.  Olmstead,  -  -    396 

Gee  V.  Lancashire,  etc.  R'y  Co.,      84 

Geer  v.  School  District,  -  -    205 

Cell  V.  Burgess,          -  -  -    760 

Gelpcke  v.  Dubuque,  -  -    684 

Gelston  v.  Hoyt,        -  -  -    256 
Gen'l  Steam  Nav,  Co.  v.  Mann,      70 

Genter  v.  Tompkins,  -  -    875 

Gentry  v.  McJlinnis,  -  -    803 

George  v.  Boncord,    -  -  -    454 

V.  Skivington,      -  -  -      28 
Georgia  Land  and  Cotton  Co.  v. 

Flint, 496 

Gerard  v.  Taggert,     -  -  -    173 

Gerhab  v.  White,       -  -  -    818 

Gerhard  v.  Bates,       -  -  -      30 

Germaine  v.  Burton,  -  -    267 

Gerrish  v.  Black,        -  .  -    572 

V.  Cummings,      -  -  -    822 

V.  Smyth,     -        -  -  -     134 

Getty  V.  Rountree,     -  -  -    278 

Gever  v.  Turner,        -  -  -    819 

Gibbes  v.  Chisholm,  -  -  681,  685 

Gibbs  V.  Bryant,         -  -  588,  589 

V.  Fremont,  -    549,  552,  635,  663 

Gibson  v.  Gibson,     220,  221,  441,  442 


xl 


TABLE    OF   CASES    CITED. 


Pages. 

Gibson  v.  Hibbarcl,     - 

-    074 

V.  Lewis, 

-    816 

V.  Marquis, 

-    277 

V.  Stearns,   - 

-    574 

V.  Winter,    - 

-    435 

Giffert  v.  West, 

-     140 

Gifford  V.  Waters,     - 

131,  176,  196 

Gihon  V.  Fryatt, 

-    317 

Gilbert  v.  Ciierry, 

-    7<J5 

V.  Kennedy,  123, 152, 209,  210,  784 

Gilbertson  v.  Richardson,  -      25 

Giles  V.  Hartis,  -        -        -        -    468 

V.  O'Toole,  -        -      110,  113,  794 

V.  Spencer,  -        -        -        -    440 

Gill's  Appeal,      ...        -    609 

Gill  V.  Lyon,       -        -        -        -    303 

V.  Rice.         -        -        -    403,  408 

Gillett  V.  Gillett,        -       -        -    352 

V.  Rippon,    -        -        -        -    136 

V.  Van  Rensselaer,      -        -    5S8 

V.  Western  R.  R.  Corp.,  100,  106 

Gillies  V.  Wofford,     -        -        -    629 

Gilligan  v.  New  York,  etc.  R.  R. 

Co., 760 

Gillilan  v.  Nixon,       -        -        -    372 
Gillin  V.  Pence,  -        -        -    207 

Gillespie  v.  Mayor,  etc.  of  N.  Y.,  534. 

677 

V.  Tarrance,         -      272,  273,  275 

Gillis  V.  Space,    -        -      131,  148,  150 

Gilnian  v.  County  of  Douglas,       349 

V.  Hill,  -        -        -        -    163 

V.  Lowell,     -        -        -    232,  233 

Gilmore  v.  Bussey,     -        -    373,  375 

V.  Holt,        -        -     455,  456,  467 

V.  Peck,-      -        -        -    d5d,  364 

V.  Schwartz,        ...    353 

V,  Van  Slyck,      -        -        -    315 

Gilpin  V.  Consequa,  -        -    617,  799 

Gilreath  v.  Alien,       -        -        -    721 

Girling  v.  Aldas,        -        -    180,  183 

Gist  V.  Alexander,      -        -        -    333 

Gladfelterv.  Walker,         -        -      96 

Glanville  v.  Stacy,     -        -        -      15 

Glass  V.  Abbott,  -        -        -    330 

V.  Pullen,     -        -        -        -     305 

Glasscot  V.  Day,         -        -    457,  461 

Glaucus,  The,      -        -        -        -     100 

Gleason  v.  Clark,        -        -        -    280 

V.  Maer,        -        .        -        -    288 

V,  Smith,      -        -        -        -     160 

Gleen  y.  Baxter,         -        -        -    314 

V.  Noble,       -        -        -        -    376 

V,  Smith,      -        -        -        -     377 

Glenn  v.  Glenn,  _        .        .    357 

Glen  &  Hall  M.  C.  v.  Hall,        -    289 

Globe  Ins.  Co.  v.  Lansing,         -    350 

Glover  v.  Austin,        -        -        _    209 

V.  Hannewell,      -        -        -    206 

V.  London,  etc.  R'y  Co.,     -      70 

Goddard  v.  Bulow,    -       -        -    623 


Pages. 

Goddard  v.  Cox,        -        -  398,  406 

V.  Foster,      -        -        -  -     666 

V.  Grand  Trunk  R'y  Co.,  739,  750, 

755,  758 

V.  Hodges,    -        -        -  -    409 

Godfrey  v.  AVarner,  -        -  398,  399 

Godwin  v.  Fi-ancis,    -        -  -    142 

V.  McGehee,         -        -  693,  708 

Goetz  V.  Ambs,           -        -  -    811 

Goff  V.  Great  N.  R.  R.  Co.,  -    750 

V,  Hawks,    -        -        -  -    773 

V,  Inhabitants,     -        -  615,  616 

Gogie  V.  Jacoby,         -        -  -    287 

Coins  V.  Western  R.  R.  Co.,     -    811 

Goldman  v.  Wolff,     -        -  -    118 

Goldsborough  v.  Baker,     -  -    525 

Goldtliwaite  v.  Hardman,  -        6 

Golf  V.  Rechoboth,    -        -  -    701 

Goller  V.  Felt,     -        -        -  -    169 

Gonge  V.  Roberts,      -        -  -    799 

Good  V.  Cheeseman,  347,  375, 429, 433 

Goodall  V.  Thurman,         -  -    810 

Goodenow  v.  Snyder,         -  164,  441 

V.  Tyler,       -        -        -  -    373 

Goodhall  v.  Richardson,    -  -    382 

Goodland  v.  Blewith,         -  -    449 

Goodloe  V.  Clay,         -        -  -    589 

Goodman  v.  Smith,    -        -  -    428 

Goodno  V.  Oshkosh,  -        -  198,  811 

Goodnow  V.  Millard,          -  -      13 

Goodrich  v.  Stanley,          -  -    375 

V.  Starr,        -        -        -  -    247 

V.  Tracy, 357 

Goodspeed  v.  Bank,  -        -  721,  750 

Goodwin  v.  Apj^leton,        -  806,  809 

V.  Morse,     279,  280,  283,  291,  297 

Goodwyn  v.  Goodwyn,      -  -    803 

Gordon  v.  Baxter,     -        -  -        6 

V.  Brewster,        -        -  -    148 

V.  Brown,    -        -        -  -    478 

V.  Bruner,  -        -        -  -    283 

V.  Butts,      -        ...      94 

V.  Goodwin,         -        -  -    207 

V.  Hobart,  -        -        -  412,  423 

V.  Kennedy,        -        -  820,  821 

V.  Norris,  "  -        -        -  -    108 

V.  Phelps,    -        -        -  550,  666 

V.  Swan,      -        -        -  597,  598 

V.  United  States,        -  -    599 

V.  Wansey,          .        _  -    352 

Gorman  v.  Sutft>n,    -        -  -    233 

Goslin  V.  Hodson,      -        -  465,  781 

Goss  V.  Dysant,          .        _  -    614 

V.  Lester,     -        -        -  -    305 

V.  Lord  Nugent,          -  -    4C3 

V.  Strinson,          -        -  .    406 

Gould  V.  Allen,          _        -  -    759 

V.  Banks,     -        -        -  -    701 

V.  Barrett,  -        -        -  -     143 

V.  Bishop  Hill  Colony,  493,  538, 

561,  576,  580 


TABLE    OF    CASES    CITED. 


Xli 


PdOCS* 

Gould  V.  Gould,         -        -        -    440 

V.  Hauiuierslev,  -        -    773 

V.  Hudson  R.  R.  R.  Co.,     -        5 

Gouveneur  v.  Liucli,         -        -    303 

Governor  v.  Ball,       -        -        -    204 

V.  Hicks,      -        -        -        -    211 

Gowan  v.  Garrish,     -        -     480,  489 

Gowen  v.  Saltmarsh,        -        -    525 

Gower  V.  Carter,    493,  494,  508,  570. 

577,  578 

V.  Halloway,       ...    375 

Grable  v.  Margrave,  -        -    721 

Grabriel  v.  Dresser,  -        -        -    433 

Grace  v.  Park,   -        -        -        -    773 

Graeff's  Appeal,         -        -        -    309 

Graeme  v.  CuUen,     -        -        -    683 

Graham  v.  AUsop,     -        -        -    255 

V.  Bickham,         -        -        -    773 

V.  Chrystal,         -        -        -    617 

V.  Cooper,   -        -        -     404,  503 

V.  Graham,  -        -        -    617 

V.  Maitland,         -        -     795,  797 

V.  Pacific  R.  R.  Co..   -     721,  743 

V.  Western  Union  Tel.  Co.,      84 

V.  Williams,         -        -        -    617 

v.  AVilson,   -        -        -        -    277 

v.  Woodson,        -        -        -    607 

Gram  v.  Cadwell,      -  .      -        -    435 

Gromor  v.  Joder,       -        -        -    ,540 

Grand  v.  Tucker,      -        -        -    603 

Grand  Lodge  v.  Knox,     -    282,  289 

Grand  Rapids,  etc.  R.  R.  Co,  v. 

Van  Duysen,       -        -        -    203 
Grand  Tower  Co.  v.  Phillips,     134, 
151,  173,  516,  796 
Granger  v.  Pierce,     -        -        -    678 
Grannis  v.  Linton,    -        -        -    283 
Grant  v.  xVstle,  -        -        -        -    820 
V.  Button,    -        -     280,  299,  301 
V.  Healy,      -     342,  343,  638,  639 
V.  Ludlow,  -        -        -        -        8 
V.  Smitli,      -        -        -        -     165 
Grantt  v.  MacKenzie,       -        -    613 
Grass  Valley  M.  Co.  v.  Stack- 
house,  -----    763 
Grasselli  v.  Lowden,       505,  506,  525 
Gratacup  v.  Woullwise,  -        -    344 
Graves  v.  Berdan,     -        -        -    2S5 
V.  Dodson,  -        -        -        -    763 
V.  Friend,     -        -        -        -    370 
V.  Hardestv,        -        -    447,  455 
V.  ]\rcFarlaue,     -        -        -    467 
V.  Rey.         ....    427 
V.  State,       -        -        -        -    231 
V.  Waller,    -        -        -        -    823 
V.  Woodbury,      -        -        -    315 
Grav's  Appeal,  -        -        .        -    623 
Gray  v.  Ballard,        -        -    763,  765 
v,  Bennett,  -        .        -    573 

v.  Brisco,     -        -        -        -    549 
V.  Crosby,    -      478,  494,  498,  5S0 


Pages. 

Gray  v,  Crowley,       -  -  -    ,529 

V.  Haig,        ...  -    784 

v.  Parker,    -        -  -  -    104 

Graybill  v.  AVarren,  -  -    677 

Grayson  v.  Lilly,       -  -  -    832 

Greasley  v.  Codling,  -  -        6 

Great  Western  R'y  Co.  v.  Red- 

mayue,         -        -  -  -      84 

Greeley  v.  Stilsou,     -  -  -    169 

V.  Thurston,         -  -  -    445 

Green  v.  Belchin,      ...    608 

V.  Bliss,       -        -  -  -    807 

V.  Burke,     -        -  -  -    350 

V.  Button,   -        -  -  50,  68 

V.  Craig,      -        -  -  -    721 

V.  Elraslie,  -        -  -  -      42 

V.  Farmer,  -        -  -  225,  265 

V.  Hatch,     -        -  -  311,  314 

V.  Langdon,         -  -  356,  434 

V.  Mann,      -        -  95,  109,  151 

V.  Omnibus  Co.,  -  -    750 

V.  Plank,      ...  -    795 

V.  Price,       -        -  -  505,  523 

V.  Romage,          -  -  -    303 

V.  Reeding,          -  -  -        5 

V.  Shurtliif,         -  -  443,  697 

v.  Stone,      -        -  -  -    830 

v.  Tvler,      -        -  401,  408,  413 

V.  Vrilhems,         -  -  -     109 

v.  Wright,  -        -  -  -    763 

Greene  v.  Hearne,     -  -  -    774 

Greenfield  Bank  v.  Leavitt,     -    239 

Greenland  v.  Chaplin,  -  -      70 

Greenleaf  v.  Francis,  -  -        4 

V.  Kellogg,  -        -  -  -    677 

Greenly  v.  Hopkins,  -  -    628 

Greenough  v.  Walker,  -  348,  349 

Greenville,   etc.   R.    R.    Co.   v. 

Partlow,      -        -  -  -    731 

Greenwood  v.  Curtis,  -  -    373 

Greer  v.  Tweed,         -  -  -    509 

Gregg  V.  Fitzhugh,  -  -  -     173 

Gregory  v.  Forester,  -  -    433 

V,  Frothingham,  -  -    819 

V.  McDowell,      -  -  -    796 

v.  Scott,       -        -  -  -    2fc<5 

V.  Wells,      -        -  -  443,  697 

Greggs  V.  Greggs,      .  -  -    628 

Gridley  v.  Stare,        -  -  -    204 

Griffin  v.  Colver,     17,  79,  84.  93,  94, 

109,  113,  764 

V,  Moore,     -        -  -  -    287 

V.  Tyson,     -        -  -  -    468 

V.  Wilcox,   -        -  -  -        7 

Griffith  V.  Bogardus,  -  _-    1C4 

V.  Crogan,  -        -  -  375,  377 

V.  Furry,      -        -  -  -    540 

V.  Hodges,  -        -  -  459,  461 

V.  Miller,      -        -  -  -    829 

Griffiths  V.  Lewis.     -  -  -    821 


Griggs  V.  Fleckenstein, 


66 


xlii 


TABLE    OF    CASES   CITED. 


Griggs  V.  Foote, 
Grigsby  v.  Ford, 
Grimes  v.  Blake, 

V.  Doe, 
Grimshaw  v.  Bender, 


Pages. 
5 

-  772 

-  678 

-  674 

-  663 


Grindle  v.  Eastern  Exp.  Co.,  83,  238 
Grinnell  v.  Pliillips,  -    803,  805 

Grisli  V.  Hodges,  -  -  -  762 
Griswold  v.  Haven,  -  -  -  749 
Groat  V.  Gillespie,  -  -  -  141 
Grocers'  Nat.  Bank  v.  Clai-k,  -  7 
Grosvenor  v.  Ellis,  -  -  -  630 
Grover  v.  Buck,  -  -  -  195 
V.  Shole,  -  -  -  .10 
Groves  v.  Groves,  -  -  -  579 
Grund  v.  Pendergast,  -  -  333 
Gunish  v.  Standard  Sugar  Re- 
finery, _  -  -  _  695 
Grynies  v.  Blofield,  -  -  -  385 
Guard  v.  Risk,  -  -  803,  811 
V.  Whiteside,  -  -  221,  441 
Guengerich  v.  Smith,  -  739,  745 
Guernsey  v.  Carver,  -  179,  180,  183 
Guflf  V.  Hutchinson,  -  -  816 
Guild  V.  Guild,  -  -  -  -  142 
Guille  V.  Swan,  -  -  64,  163,  211 
Guion  V.  Knapp,  -  -  803,  305 
Gulley  V.  Remy,  _  -  _  556 
Gully  V.  Grubbs,  -  -  -  433 
Gunn  V.  Head,  -  -  -  -  678 
Gunther  v.  Lee,  -  -  -  208 
Gurly  V.  Heleshal,  -  -  -  426 
Guthman  v.  Castleberry,  -  285,  286 
Guthrie  v.  Bashlino,  -  -  388 
V.  Wickliffe,  -  -  -  603 
Guy  V.  Franklin,  -  -  550,  604 
Gv^athney  v.  McLane,  -  -  402 
Gwinn  v.  Whitaker,  421,  423,   600, 

687,  688 
Gwynne  v.  Edwards,        -        -    308 

Haas  V.  Chicago  Society,  -  -  602 
Hack  V.  Garland,  _  .  _  432 
Hackenberry  v.  Shaw,  -  541,  556 
Hackett  v.  B.,  C.  &  M.  R.  R. 

Co., 788 

Hackley  v.  Sprague,  -        -    670 

Hadeu  v.  Phillips,  -  -  -  413 
Hadley  v.  Ay  res,        -        -        -    618 

V.  Baxendale,  19,  74,  79,  84,  87, 

88,  89,  90,  93,  130,  147,  552 

Haescig  v.  Guild,       -        -        -    388 

Hagan  v.  Providence,  etc.,       -    755 

V.  Riley,  -  -  13,  187,  191 
Hagg  V.  Augusta  Ins.  &  B.  Co.,  617 
Hahn  v.  Corbett,  -  -  -  52 
Haigh  v.  Brooks,  -  -  -  439 
Haight  V.  Holcomb,  -        -        -    317 

V.  Hoyt,  -  -  -  -  7 
Hailbroner  v.  Hancock,  -  -  150 
Haines  v.  Tucker,      -        -        -    107 


Pages. 
Hair  v.  Little,    -        -        -        -    824 
Haldeman  v.  Jennings,    -        -    498 
Hale  V.  Cove,     -        -       -       -    804 
v.  Holmes,  -        -        -        -    430 
V.  Now  Orleans,  -        -        -    594 
V.  Troul,       -        -        -        -    173 
Hales  V.  London,  etc.  R'y  Co.,        84 
Hall  V.  Claggett,        -        -        -    177 
V.  Clark,      -        -        -        -    277 
V.  Clement,  -        -        -    409 

V.  Constant,  -  -  -  393 
V.  Crowley,  -        -     505,  530 

V.  Emmons,  -  -  -  830 
V.  Gray,  -  -  -  -  206 
V.  Green,  -  -  -  -  380 
V.  Hall,  -  -  605,  761,  810 
V.  HoUender,  -  -  -  746 
V.  Huckins,  -        -        -    615 

V.  Kimball,  -        -     663,  666 

V.  Leigh,      -        -        -        -    204 
V.  Marston,  -        -     398,  402,  403 
V.  Peters,     -        -     444,  448,  467 
V.  Swarthout,      -        -        -    43O 
V.  Woodson,        -        -     639,  666 
Halleck  v.  Miller,      ...      66 
V.  Nixer,      -        -        -        -    165 
X.  Slater,      ...        -    525 
Hallett  V.  Nevion,      -        -        -    239 
Halliday  v.  Daggett,  -        -    207 

Hallock  V.  Belclier.  -        -     134,  763 
Halloway  v.  Turner,  -        -    143 

Hallowell,   etc.    Bank  v.   How- 
ard,      -----    455 
Halsey  v.  Fairbank,  -        -        -    435 
V.  Flint,        -        -     468,  472,  713 
V.  Woodruff,       -        -        -    823 
Halsman  v.  Boiling  Springs,     -      13 
Halton  V.  Brown,       -        -        -    459 
Hamaker  v.  Eberly,  -        -        -    443 
Haman  v.  Dimmick,  -        -    703 

Hambleton  v.  Veere,  196,  198,  200 
Hamer  v.  Hathaway,  -  174,  629 
V,  Kirkwood,  -  -  -  536 
V.  Knowles,  -  -  -  196 
V.  McFarlan,  -  -  -  234 
Hamilton  v.  Benburg,  -  -  398 
V.  Coons,  -  -  -  -  396 
V,  Gangard,  -  -  -  614 
V.  Mayor,  etc.,  -  -  -  6 
V.  McPherson,  -  -  -  148 
V.  Moore,  -  -  -  505,  509 
V.  Overton,  -        -        -    489 

V.  Rogers,  -  -  -  -  164 
V.  Third  Av.  R.  R.  Co.,  159,  724, 

741 

V.  Van  Rensselaer,      -     539,  543 

V,  Windolk,         -        -     253,  260 

Hamlin  v.  Great  N.  R'y  Co.,  101,  106, 

156,  238 
Hamm  v.  Calvey,  -  -  -  810 
Hammatt  v.  Emerson,      -        -    277 


TABLE    OF    CASES    CITED. 


xliii 


Pages. 
Hammatt  v.  Wyman,        -        -    353 
Hammel  v.  Biwu,   -        -     582,  707 
Hamiuer  v.  Bradenbush,  -        -    525 
V.  Neville,    -        -        -        -    421 
V.  Schoenfelder,  -         80,  93 

Hammond  v.  Christie,      -     427,  480 
V.  Hammond,      -        -        -    604 
V.  Mukwa,  -        -        -        -    811 
Hamner  v.  Hamner,  -        -    357 

Hampshire  Manuf .  Bank  v.  Bill- 
ings, -----  453 
Hampton  v.  Barr,  .  -  -  763 
V.  Dean,  -  -  -  -  431 
Hanauer  v.  Smith,  -  -  -  338 
Hanbie  v.  Valkening,  -  456,  459 
Hancock  v,  Franklin  Ins.  Co.,  331, 

333 

V.  Gomez,    -        -        -        -    174 

V.  Haywood,        -        -        -    820 

Hand  v.  iVrmstrong,  -     549,  550 

V.  Boj  nes,    -        -        -        -      60 

Hanks  v.  Evans,         -        -        -    776 

Haumer  v.  Wiltsey,  -        -        -    243 

Hann  v.  Gosling,        -        -        -    S39 

Hanna  v.  Holton,       -        -        -    383 

v.  Rateker,  -        -        -        -    456 

Hanover  v.  Rochester,       -        -    433 

Hanover  R.  R.  Co.  v.  Coyle,    70,  123 

Hanover  Water  Co.  v.  Ashland 

I.  Co., 199 

Hanrick  v.  Andrews,  632,  636,  653 
V.  Farmers'  Bank,  -  -  773 
Hansbrough  v.  Peck,  -  -  568 
Hansard  v.  Robinson,  -  -  403 
Hansel  v.  Morris,  -  -  -  207 
v.  Rounsavill,  -  -  -  419 
Hanson  v.  Eurojiean,  etc.  R.  R. 

Co.,  -        -        -        -     750,  757 

V.  Lawson,  -        -        -        -    790 

Harbeck  v.  Craft,      -        -        -    378 

V.  Vanderbilt,      -        -        -    353 

Harbin  v.  Green,        -        -        -    187 

Hardee  v.  Howard,   -        -        -    496 

Harden  v.  Hesketh,  -        -        -    785 

V.  I\Iavor,     -        -        -        -    003 

v.  Wolf,        -        -        -        -    550 

Harding  v.  Davies,    -     449,  456,  457 

V.  Howdy,  -        -        -        -     688 

V.  Larkin,    -        -      140,  145,  594 

v.  Tifft,        -        -        -        -    411 

V.  Townsend,       -        -        -    243 

Hardinham  v.  Allen,         -        -    453 

Hardman  v.  Bellhouse,     -        -    420 

Hardy  v.  Broad  us,     -        -        -    824 

V.  Cathcart,         -        -        -    703 

V.  Coe,  .        -        -        -    437 

V.  Merrill,    -        -        -     788,  790 

Hare  v.  Alexander,    -        -        -    372 

Harger  v.  Edmonds,  -     276,  794 

Hargons  v.  Lahens,  -        -     449,  451 

Hargous  v.  Ablon,     -        -        -      95 


Pages. 

Hargrave  v.  Dusenberry,  -    358 

V.  Peurod,    -        -        -        -    760 

Hargrous  v.  Cooke,   -     401,  409,  413 

Harker  v.  Orr,    -        -        -        -    820 

Harland's  Accounts,  Matter  of,    623 

Harley  v.  Thornton,  -     322,  364 

Hai-ni  V.  McCormick,        -        -    831 

Harmon  v.  Childress,        -        -    828 

V.  Sanderson,       -        -     266,  278 

Harmony  v.  Bingham,      -     505,  509 

Harpeuding  v.  Shoemaker,       -     786 

Harper  v.  Bell,  -        -        -        -    603 

V.  Columbus  Factory,        -    283 

V.  Graham,  -      427,  438,  429 

V.  Hampton,        -        -        -    631 

V.  Harvey,  -        -        -        -    387 

V.  Miller,      -        -        -        -      77 

Harrington  v.  Glenn,        -        -    COO 

V.  Hoggart,  -        _        -    593 

V.  Mac  Morris,     -        -        -    320 

v.  Murphy,  -        -        -      95 

V.  Pauly,      -        -        -        -    381 

V.  Stratton,  -      277,  279,  291 

V.  Witherow,       -        -        -    772 

Harris  v.  Benson,       -        -        -    588 

V.  Clap,         -        -        -        -    599 

V.  Eldred,    ....      98 

v.  Hundley,  ...    583 

v.  Jalfray,    -        -        -        -    763 

V.  Jex,  -      304,  447,  451,  471 

V.  Jolmston,         -        -    375,  379 

V.  Leggett,  -        -        -        -     177 

V.  ^Miller,      -        -        -    490,  506 

V.  Mulock,   ...        -    459 

V.  Palmer,    -        -        -        -    311 

V.  Panama  R.  R.  Co.,  786,  788,  796 

V.  Rathbuu,  -        -    283,  297 

V.  Rupel,      -        -        -        -    811 

V.  Story,       ...        -    430 

V.  Wheelock,        -        -        -    456 

V.  Wilcox,    -        -        -        -    426 

Harrison  v.  Berkley,  -        -      57 

V.  Close,        -     428,  433,  439,  441 

V.  Conlan,    ....    615 

V.  Glover,     -        -        -        -    800 

V.  Great  North.  R.  W.  Co.,  41,  70 

V.  Harrison,  .        -        -    664 

V.  Henderson,      -        -    357,  358 

V.  Hicks,      -        -        -    387,  429 

V.  Johnson,  -        -    419,  420 

V.  Long,       ....    623 

V.  AVright,   -        .        -        -    489 

Harroldson  v.  Stein,        283,  289,  297 

Hart  V.  Alexander,    -        .        -    429 

V.  Allen,       ...        -      60 

V.  BoUer,      -        -     370,  372,  376 

V.  De  Lord,  -        -        -    823 

V.  Dorman,  .        -        -    431 

V.  Evans,      -        -      703,  765,  766 

V.  Flvnn,      -      448,  454,  461,  402 

V.  Goldsmith,       -        -        -    573 


xliv 


TABLE    OF    CASES    CITED. 


Pages. 

Hart  V.  Smith,  - 

-     28(3 

V.  Stone, 

-     204 

V.  Ten  Eyck, 

-    163,  784 

V.  Vidal,       - 

-    799 

V.  Waitt,      - 

-    763 

V.  Western  R'y  Co.,  -  -  25 
Harting  v.  Dickinson,  -  440,  443 
Hastings  v.  Thorley,  -        -    459 

Hartland  v.   General  Exchange 

Bank, 177 

Hartle  v.  Stahl,  -        -        -    430 

Hartley  v.  Totham,  -        -        -    471 

Hartraan  v.  Danner,  -        -    426 

Harvey  v.  English,     -        -        -    624 

V.  Hackley,  -        -        -    468 

V.  Harvey,  -        -     234,  440,  608 

v.  Hewitt,   -        -        -        -    804 

V.  Rickett,  -        -        -    803,  804 

V.  Rubber  Tip  P.  Co.,         -    317 

V.  Woodhouse,    -        -        -    304 

Hasbrouck  v.  Tappan,       -        -    506 

Haskell  v.  Bartlett,   -        *       -    605 

V.  Brewer,  -        -        -    467,  704 

V.  Hunter,  -        -        -        -     107 

V.  Mitchell,  -        -        -    798 

Haskins  v.  Alcott,     -        -        -    603 

Hastic  v.  De  Peyster,        -        -    588 

Hastings  v.  Dickinson,      -        -    234 

v.  Wiswell,  -        -    618,  077 

Hatch  V.  Vermont,  etc.  R.  R.  Co.,     6 

Hatchett  v.  Gibson,  -      281,  287,  289 

Hatfield  v.  Fullerton,        -    285,  286 

Hathaway  v.    National  L.  Ins. 

Co., 790 

Hathorn  v.  Richmond,  -  -  148 
Hathorne  v.  Stinsou,  -  10,  13 
Hatten  v.  Eyre,  -        _        .    437 

Hatton  V.  Board  of  Commis- 
sioners, -  _  -  .  803 
Hauser  v.  Pearse,  -  -  -  75 
Hauxhurst  v.  Hovey,  -  -  633 
Haven  v.  Folev,  -  -  -  373 
V.  Wakefield,  -  -  83,  297 
Havens  v.  Ilartford,  etc.  R.  R. 

Co.,      -        -        -      773,  776,  779 

Hawes  v.  Knowles,  -       73,  733,  754 

V.  Woolcock,       -        -        -    343 

Hawk  A^  Anderson,  -        -        -    763 

V.  Ridgway,         .        .        _    743 

V.  Dodge  Co.  Mut.  Ins.  Co.,    348 

Hawkins  v.  House,    -        -        -    819 

V.  Minor,      ...        -    633 

V.  Stark,       -        -        -        -    353 

Hawley  v.  Foote,       -        -        -    373 

V.  Sloo,        -        -        -        -    633 

Hawks  V.  Crofton,     -        -        -    809 

V.  Hinchclitf,       -        -    880,  383 

Hay  V.  Cohoes  Co.,    -        -  4,6 

V.  Green,      ...        -    2O6 

V.  Short,       -        -        -        -     293 

Hayden  v.  Albee,      -     187,  199,  203 


Pagea. 

Hayden  v.  Anderson,  -  405,  468 
V.  Cabot,  76,  95,  136,  154,  238 
V.  Florence  Sewing  Machine 

Co.,    -        -        -  -  811 

V.  Madison,          -        .  -  283 

V.  McDermott,     -        -  -  316 

Hayes  v.  Josephi,      -        -  -  473 

Haymaker  v.  Demets,       -  -  108 

V.  Schroers,          -        .  -  513 

Hayne  v.  Prother,     -        -  -  293 

Haynes  v.  Harper,     -        -  -  277 

V.  Nice,        -        -      399,  403,  408 

V.  Thorn,     -        -        -  465,  470 

V.  Waite,      -        -        -  -  405 

Hays  V.  Millar,           .        -  -  750 

V.  Miller,      -        -        -  -  571 

V.  Morse,     -        -        -  -  398 

V.  Ward,      ...  -  305 

Haysler  v.  Owen,      -        -  150,  151 

Hayter  v.  Moat,         -        -  -  833 

Hayward  v.  Cain,     -        -  -  243 

V.  Ellis,        ...  -  592 

V.  Hague,    .        .        -  465,  466 

V.  Leonard,          -        -  160,  283 

V.  Lomax,    -        -        -  -  421 

v.  IMunger,  -      456,  467,  470,  697 

Haywood  v.  Foster,          -  233,  2:55 

Hazard  v.  Loring,     -        -  -  455 

Hazen  v.  Reed,          -        _  .  353 

Hazzard  v.  Atlee,      ...  353 

Head  v.  Tattersall,    -        -  -  46 

v.  Ward,      -        -        -  -  674 

Heald  v.  Davis,         -        -  -  397 

Healy  v.  Gorman,     -        -  632,  663 

Heard  \.  Black  man,         -  -  877 

v.  Bowers,  -        -        -  -  505 

V.  Holman,           -        -  110,  12;^ 

V.  James,      -        -        -  105,  169 

Hearle  v.  Greenbank,       -  -  608 

Hearn  v.  Cuthberth,         -  -  421 

v.  Keith,      ...  -  432 

Heartt  v.  Rhodes,     -        -  374,  378 

Heaston  v.  Colgrove,        -  -  279 

Heath  v.  Guy,  -        -        -  -  620 

V.  Perry,      -        -        -  -  608 

Heaton  v.  Angler,     -        -  348,  432 

Heavilon  v.  Cramer,         -  150,  238 

Heck  V.  Shiner,         -        -  -  280 

Heckman  v.  Manning,      -  -  208 

Hecksher  v.  McRea,          -  -  148 

Hedden  v.  Van  Nest,        -  -  207 

Hedges  v.  Holmes,    -        -  -  350 

Hed  worth  v.  Primate,      -  -  669 

Heffley  v.  Baker,        -        -  -  721 

Hegerman  v.  Western  R.  R.  Co.,  813 

Heilbron  v.  Bessell,  -        -  -  433 

Heinman  v.  Schroeder,    -  535,  708 

Heinnemau  v.  Heard,       -  -  174 

Ileintz  V.  Cohn,         -        -  406,  409 

Heirn  v.  McCaugher,        -  -  105 

Hellen  v.  Ardley,      -        -  -  59^ 


TABLE    OF    CASES    CITED. 


xlv 


Pages. 
Helphrey  v.  Chicago,  etc.  R.  R. 

Co., 451 

Hempfield  R.  R.  Co.  v.  Thorn- 
bury,  -----  423 
Henderson  v.  Broomhead,  -  5 
V.  Cansler,  -  -  -  -  525 
V.  Desha,  -  -  -  550,  603 
V.  Hamilton,  -  -  -  678 
V.  Herrod,  -  -  -  -  417 
V.  McPike,  -  -  -  -  829 
V.  Staintor,  -  -  -  781 
V.  Stobart,  -  -  -  -  428 
Hendrickson  v.  Kingsbury,  725,  7S8, 

803 

Henkler  v,  Alstadst,          -        -  303 

Henley  v.  Neal,          -        -        -  25 

Hennessy  v.  Farrell,          -        -  518 

V.  Sheldon,          -        -        -  715 

Henning's  Case,          ...  620 

Henning  v.  Hale,      ...  246 

V.  Van  Tyne,       -        -        -  709 

Henry  v.  Dafilho,      -        -        -  4 

V.  Earl,         -        -        -        -  394 

V.  Flagg,      ...        -  680 

V.  Risk,        -        -        -        -  618 

V.  Sweasey,         -        -        -  760 

V.  Thompson,      .        -        -  546 

Henson  v.  Veatch,    -        -    232,  234 

Henwood  v.  Oliver,           -        -  4.19 

Hepburn  v.  Auld,     -        -    459,  464 

V.  Dunlop,  -        -        -        -  59;^ 

V.  Griswold,         ...  451 

V.  Sewell,     ....  629 

Herbert's  Case.           -        -        -  303 

Herbert  v.  Ford,      265,  278,  289,  291 

V.  Hardenberg,    ...  762 

V.  Salisbury,         .        -        -  493 

Herdic  v.  Young,       -        -    167,  169 

Herreter  v.  Helm,      -        -        -  201 

Herrick  v.  Bean,         -        -        -  311 

Herring  v.  Hoppock,         -        -  212 

T.  Sanger,    ....  375 

V.  Skaggs,    -        -        -        -  70 

Herriter  v.  Porter,     ...  177 

Hesketh  v.  Fawcett,          -        -  702 

Hess'  Estate,       -        .        -        -  309 

Hess  V.  Werts,   -  •       -        -        -  674 

Hesseltine  v.  Stockwell,     -        -  163 

Hethcote  v.  Crookshanks,         -  429 

Hewett  V.  Morris,      -        -        -  677 

Hexter  v.  Knox,  83,   130,  151,  285, 

286,  298 

Heydale  v.  Hazelhurst,     -        -  603 

Heydou's  Case,  -        -     824,  825,  826 

Heyler  v.  Hall,  -        -        -        -  804 

Heylyn  v.  Adamson.          -        -  636 

Hibbard  v.  New  &  E.  R.  R.  Co.,  749 

V.  Western  U.  Tel.  Co.,     11,  815 
Hickey  v.  Baird,        -        -         13,  14 

Hicks  V.  Bingham,    ...  402 

V.  Brown,     -        -        -        -  035 


Pages. 
Hicks  V.  Cram,  ...    2O8 

V.  Herring,  -  -  -  .  187 
V.  Mereco.  .  -  -  -  598 
Higby  V.  N.  Y.,  etc.  R.  R.  Co.,  375 
High  V.  Johnson,  ...  815 
Higham  v.  Baddeley,  -  -  461 
Highland  Bank  v.  Dubois,  -  351 
Highland  Turnpike  Co.  v.  Mc- 

Kean,   -        -        -        -        -    820 
Hightower  v.  Hawthorne,        -    776 
Higgins  V.  Dewey,     -        -         26,  27 
V.  Halligan,  -        -        -    465 

V.  Lee,  -        -        -        -    283 

V.  R.  R.  &  A.  W.  M.  Co.,  325,  334 
V.  Sargent,  -  549,  582,  597,  608 
V.  Wartell,  -  -  -  -  375 
V.  Watervliet  I.  &  R.  Co.,  -  750, 

758 
V.  Weed,  ....  525 
V.  Whitney,  -  -  -  242 
Higley  v.  First  Nat.  Bank,  -  598 
V.  Newell,  -  -  -  -  540 
Hill  V.  Austiii,  -  -  -  -  301 
V.  Beebe,  -  -  -  -  378 
V.  Caufield,  -        -        -    796 

V.  Featherstonehaugh,  -  280 
V.  Goodchild,  -  -  823,  824 
V.  Grange,  ...    44,1 

V.  Marcy,  ....  375 
V.  Newman,  ...  814 
V.  New  Orleans,  etc.,  R.  R. 

Co., 755 

V.  New  River  Co.,        -        -      41 

V.  Place,      -      351,  455,  456,  459 

V.  Robbins,  ...    407 

V.  Smith,      -        -        -        -    474 

V.  Sutlierland,     ...    405 

V.  Southwick,      -        -        -    280 

Hillhouse  v.  Davis,    -        -        -    597 

Hillier  v.  Alleghany  Ins.  Co.,  -      34 

Hilliker  v.  Loop,        -        -        -    207 

Hills  V.  Misnard,         -        -    347,  348 

Hillyard  v.  Crabtree,        -        -    160 

Hillyer  v.  Vaughan,  -        -    423 

Himely  v.  Rose,  -        -    601,  715 

Himmelman  v.  Oliver,       -        -    605 

Hinchman  v.  Patterson  R.  R.  Co. ,  205 

Hinckley  v.  Arey,      -        -        -    427 

V.  Beckwith,        -         83,  97,  118 

Hinde  v.  Liddell,  83,  88,  151,  155 

Hindle  v.  Birch,         -        -        -    804 

Hinds  V.  Barton.        -        -        -    629 

Hinsdell  v.  Yv'eed,      -        -    275,  281 

Hiren  Cothem  v.  Lowenbeim,       184 

Hitchcock  V.  Coker,  -        -    505 

V.  Hunt,      152,  278,  289,  291,  297 

Hitchner  v.  Ehlers,   -        -        -    219 

Hite  v.  Long,     -        -        -     179,  193 

Hoadley  v.  Northern  Trans.  Co.,  21, 

59 
V.  Watson,  -        -     721,  724,  739 


xlvi 


TABLE   OF    CASES   CITED. 


Pages. 

Hoag  V.  McGinnis,     -        -     48!)/525 

Hoagland  v.  Scheack,       -     608,  609 

V.  Segur,     531,  525,  528,  617,  618 

Hoar  V.  Clute,    -        -        -        -    875 

Hoare  v.  Hitidley,      -        -        -    805 

Hobart  v,  Stone,        -        -        -    440 

Hobein  v  .  Drewell,    -        -        -    285 

Hobbs  V.  Davis,         -        -         24,  99 

V.  Dutf,        -        -        -        -    275 

V.  L.  &S.  W.  RV  Co.,  78,  85,  101, 

157 

Hobson  V.  Todd,        .        -        -        9 

V.  Trevor,     -        -        -        -    478 

Hochster  v.  De  La  Tour,  -    148,  190, 

195 

Hod  V.  Holmes,         -        -        .    346 

Hodapp  V.  Sharp,      -        -        -    813 

Hodgdon  v.  Hodgon,        -     600,  681 

Hodges,  Ex  parte,     -        -        -    504 

Hodges  V.  Fox,  .        -        -    373 

v.  Hodges,  -        -        -     587,  812 

V.  Holmau,  ...    620 

V.  King,       -        -     490,  502,  504 

V.  Latham,  _        .        -    374 

V.  Raymond,        _        -        -    809 

V.  Smith,      -        -        -        -    440 

Hodgkins  v.  Moulton,       -        -    279 

Hodsoll  V.  Stollebrass,      -     196,  200 

Hodwin  v.  Mendizabel,     -        -    378 

Hoe  V.  Sanborn,         _        -        -    278 

Hoes  V.  Van  Hoesen,         -        -    434 

Hoey  V.  Candage,      -        -        -    808 

V.  Felton,     -        -        -        43,  49 

Hoff  V.  Hutchinson,  -        -        -    762 

Hoffman  v.  Brown,  -        -        -    441 

V.  Dunlap,  -        -        -        -    436 

V.  Johnson,  .        _        -    382 

V.  Union  Ferry  Co.,   -     106,  155 

V.  Wallier,  -        -        -        -    347 

Hofnagle  v.  New  York,  etc.  R. 

R.  Co.,  -        ...      95 

Hogg  V.  Cardwell,     -        -        -    277 

V.  Zanesville  C.  &  M,  Co.,       629 

Hoit  v.  Malony,         -        -        -    7G2 

Holbrook  v.  Hyde,    -        -        -    164 

V.  Receivei's,        -        -        -    225 

V.  Tobey,      -        -        -        -    505 

V.  Vibbard,  -        -        -    635 

V.  Young,    -        -        -        -    285 

Holburn  v.  Neal,        -        -        -    811 

Holden  v.  Lake  Co.,  -        -     122,  130 

V.  Liverpool  Gas  Co.,  -      70 

V.  Trust  Co.,         -        -        -    549 

Holdgate  v.  Clark,     -        -        -    134 

Holdip  V.  Otway,       -        -        -    772 

Holeman  v.  Coleman,       -        -    814 

Holland  v.  Phillips,  -        -        -    453 

V.  Weld,       -        .        .        .    436 

Holley  V.  Mix,   -        -        -        -    825 

Hollingshead  v.  Maciter,  -        -    283 

Hollingsworth  v,  Detroit,         -    684 


Pages. 

Hollister  v.  Davia,     -        -        -   ^^419 

V.  Union  Co.,      -        -  ^      -        ij 

Hollowell  V.  Howard,        -        -    447 

Holly  V.  Boston  Gas  Co.,  -        -      64 

Holman  v.  Creagmiles,     -        -    291 

Holmes  v.  Benson,     -        -        -    389 

V,  Brockett,         -     .  -        -    354 

V.  De  Camp,        -        -        -    375 

V.  Dung,       -        -        -        -    625 

V.  Holmes,  -     447,  455,  456,  467, 

475 

V.  Pratt,       -        -        -     399,  406 

V.  Robinson,        -        -     311,  316 

V.  Sinnickson,      -        -        -     140 

V.  Smith,     -        -        -        -    373 

V.  Weaver,  -        -        -        -    143 

V.  Weed,      -        -      136,  143,  153 

V.  Wilson,   -        -        -     199,  201 

Holt  V.  Scholefield,   -        -     819,  820 

Holton  V.  Brown,      -     460,  461,  462 

Holtzworth  V.  Rock,  -        -    279 

Holvenstein  v.  Higginson,        -    291 

Ho]  yoke  v.    Grand    Trunk   R'y 

Co., 159 

Homer  v.  Kirkwood,         -        -    600 

v.  Shepard,  -        -        -    600 

V.  Stephenson,     -        -        -    781 

Honore  v.  Murray,     -        -        -    606 

Hood  v.  Palm,    ...        -    759 

Hooker  v.  Newton,    ...    743 

Hooper's  Case,   -        .        -        -    385 

Hooper  v.  Hooper,    ...    430 

V.  Tile,         -        -        -        -    318 

V.  Winston,  ...    623 

Hoopes  V.  Brinton,    ...    710 

V.  Meyer,     -        -        -        .280 

Hootman  v.  Shiner,  -        -        -    246 

Hoover  v.  Peters,      -        -        -    278 

Hopf  V.  Meyers,        -        -        -    177 

Hopkins  v,  Atlantic,  etc.  R.  R. 

Co.,  -  -  -  -  750,  757 
V.  Crittenden,  ...  550 
Hojijiing  V.  Quin,  ...  280 
Hoppins  V.  Miller,  ...  663 
Hopson  V.  Fountain,  -  -  697 
Horn  V.  Batchelder,  -  .  .160 
V,  Planters'  Bank,  -  -  419 
Hornby  v.  Cramer,  -  -  449,  455 
Home  V.  Midland  R'y  Co.,  84,  86,  88 
Horner  V.  Fliutoff,  483,  491,  505,  512, 

533 

V.  Lawrence,       ...    749 

V.  Savings  Bank,        -        -    379 

V.  Wood,      -        -        -        75,  77 

Horton  v.  Citv  of  Taunton,      -      45 

Hortt  v.  Moulton,      -        -        -    803 

Hosack  V.  Rogers,      -        -    206,  440 

Hosf ord  V,  Nichols,   -        -    632,  6 13 

Hosmer  v.  True,        .        -        -    475 

V.  Wilson,    -        -        -        -     134 

Hostler  v.  Scott,        -       -       -    240 


TABLE   OF   CASES    CITED. 


xlvii 


Pages. 

Hough  V.  iEtna  Life  Ins.  Co.,  -  387 
V.  Cook,       -        -        -        -    708 

Houghton  V.  Adams,  -  -  364 
V.  Page,       -        -     535,  631,  632 

House  V.  Marshall,    -        -        -    277 
V.   Tennessee    Female    Col- 
lege, -        -        -        -    681 

Houston  V.  Crutcher,  -  -  687 
V.  Darling,  -  -  -  -  48G 
V.  Jamison,  -        -        -    609 

V.  Potts,  -  -  -  -  645 
V.  Shindler,  -  -  375,  434 
V.  Youjig,    ...        -    273 

Hovey  v.  liayo,  -  -  .  5 
V.  Newton,  -        .        -    187 

V.  Rubber  T.  P.  Co.    -    141,  316 

Howard  v.  Black,  -  -  -  769 
V.  Branuer,  _        _        .    (>;:52 

V.  Cobb,  -  -  .  -  805 
V.  Cooj)er,  -  -  -  -  242 
V.  Daly,  -  150,  176,  195,  238 
V.  Farley.  .  -  -  -  614 
V.  Grover,  -  .  .  -  812 
V.  Hopkins,  .  _  _  478 
V.  Lincoln,  -  -  .  -  209 
V.  Lovegrove,  .  -  134,  136 
V.  McCall,  -  -  .  398,  419 
V.  North  Bridge  water,  -  71 
V,  Norton,  -  -  -  427,  431 
V.  Rehni,  -  -  -  -  589 
V.  Sharer,     -        -        -        -    275 

Howard  Ins.  Co,  v.  Halsey,  303,  355 

Howe  V.  Bradley,     -        -    675,  676 

V.  Buffalo,  etc.  R.  R.  Co.,     134, 

138,  372 

V.  Newmarch,     -        -    749,  754 

V.  Wilson,   -        -        -    769,  770 

Howe  Machine  Co.  v.  Bryson,     121, 

123  131 

Howell  V.  HoweU,  .  -  ^ '  232 
V.  Scroggins,  -  -  73,  743 
V,  Shand,  -  -  -  -  316 
V.  Young,    -      187,  188,  195,  196 

Howland  v.  Coffin,  -  -  -  373 
V.  Howlaud,  ...  254 
V.  Jennings,  -  -  -  551 
V.  Marvin,  -  -  .  221,  442 
V.  Rench,     -        -        -        -    399 

Howlet  V.  Strickland,       .        -    264 

Hoy  V.  Gi'ouoble,       -        .        .118 

Hoyt  V.  B\'rnes,  -  -  -  450 
V.  Douglity,  ...  305 
V.  Gelston^  ....  715 
V.  Hall,  -  -  -  -  450 
V.  Hudson,  -  -  -  -  350 
V.  Tlu)ini>s<)n,      -        -        -        8 

Hubbard  v.  Callahan,  550,  554,  671 
V.  Charlestown,  etc,  R.  R. 

Co.,  -----  587 
V.  Chenango  Bank,  448,  453,  704 
V.  Fisher,     -        -        .        -    292 


Pages. 

Hubbard  v,  Kuons,   -        -        .    781 

V.  Rogers,    -        .        -        -    280 

V,  Sewell,     -        .        -        -    239 

Hubbell  V,  Carpenter,      .        -    442 

V,  Flint,       -        .        .    399,  403 

V,  Meigs,      -        .        .        -    152 

Hucker  v,  Blake,      -        -        -    815 

Huckle  V,  Money,     .       71,  721,  746 

Hudnit  V.  Nash,        -        -        -    562 

Hudson  V,  Daily,      -        -    600,  618 

V.  Matthews,       .        -        -    822 

V.  Nicholson,       ...    189 

V.  Roberts,  .        -        .        -      54 

V,  State,       -        .        -        .805 

V.  Tenney,  -        -        .        .    628 

Hudspeth  v,  AUen,  .        .        -    815 

V.  Wilson,   -        ...        7 

Huelet  V,  Revns,       .        -        -    281 

Huff  V.  Broyles,        -        -        .299 

V.  Cole,        -        -        -        -    373 

Huftalin  v,  Mesner,  .        -    811 

Huger  V,  Tibbits,       -        -        -    770 

Hughes  V,  Fisher,     -        -    492,  496 

V,  Graime,  -        -     140,  142,  144 

V.  Graves,    -        -        -        .    303 

V.  Heiser,     -        ...        6 

V.  McDougle,      -        -        -    402 

V.  Quentin,  -        70, 100,  106 

V.  Smith,      -        -        -        -    626 

V.  Standeford,     -        -        -    604 

V.  Wheeler,         -        -    375,  378 

V.  Wickliffe,        -        -        -    599 

Hugrous  V.  Cooke,     -        -        -    399 

Hulett  V.  SouUard,    -        .        .136 

Huling  V.  Drexell,     ...    494 

HuH  v.  Brackman,    .        .        -    280 

V.  Gale,        -        -        -        -    290 

V.  Peters,     -        -        .    468,  704 

Hume  V.  Oldacre,      -        -        -    211 

V,  Peploe,    -      444,  468,  698,  702 

Humphrey  v.  Clement,     -        -    328 

V.  Reed,       -        -        -        -    281 

Humphreys  v,  Morton,     .        .    684 

Humphries  v.  Parker,       .        -    745 

Hunt  V.  Barfield,       -        -        -    433 

V.  Chicago,  etc.  R.  R.  Co.,      745 

V.  Hall,        -        .        -        -    632 

V,  Jucks,      -        -        -    538,  596 

V.  Mayfield,         .        -        -    664 

V,  Nevers,    -        -     357,  615,  616 

V,  Pierpont,  -        -        -    280 

V,  Standart,         _        -        -    635 

V,  Terril,      -        .        -        -    437 

V,  Westervelt,     -        -        -    830 

Hunter  v.  Hatch,      .        -        .569 

V.  Hunter,  -        -        -        .    356 

V.  Jolnison,  ...     683 

V,  King,       ...        -    243 

V,  Le  Conte,        .        -    451,  472 

V.  Ousterhaudt,  -        .        -    406 

V.  Scott,       -        ...      74 


xlviii 


TAJ3LE   OF    CASES    CITED. 


Pages. 

Hunter  v.  Spotswood,       -        -  695 

V.  Stewart,            -        -    763,  765 
V.  Warner,          -      456,  459,  461 

Huntington  v.  American  Bank,  468 

V.  Coleman,         _        .        .  376 
V.  Ogdensburgh,  etc.  R.  R. 

Co., 148 

V.  Zeigler,    -        -        -        -  473 

Huntley  v.  Ward,      -        -        -  4 

V.  York  Bank,     -        -        -  623 

Hunton  v.  Sparkes,  -        -        -  476 

Hurd  V.  Blackman,  -        -        -  434 

V.  Eaton,      -        -        -    303,  305 

V.  Palmer,    -        -        -        -  618 

Hurlburt  v.  Green,   -        -    238,  239 

Hurst  V.  Hurst.          -        -        -  508 

Hury  V.  Watson,        ...  812 

Husan  v.  Kanouse,    -        -        -  615 

Huse  V.  McDaniel,     -        -        -  375 

Huson  V.  Dale,  -        -        -    23»3,  235 

Hussey  v.  Farlow,     -        -        -  344 

V.  Manuf'rs  Bank,       -        -  403 

Huston's  Appeal,       -        -    609,  677 

Huston  V.  Crutcher,          -        -  617 

V.  Noble,      -        -        -        -  701 

V.  Tevin,  etc.  Road  Co.,     -  761 

Hutchins  v.  Hullman,       -        -  339 

V.  Hutchins,        -        »•  6,  52 

V.  Ladd,       -        -        -        -  174 

V.  Nichols,  -        -        -        -  442 

V.  Olcutt,     -        -        -        -  370 

Hutchinson  v.  Granger,    -        -  763 

V.  Wetmore,        -        -        -  177 

Hutton  V.  Evre,         -        .        -  441 

Hutts  V.  Hutts,          -        -        -  232 

Hyatt  V.  Adams,        -  .      -        -  724 

V.  Trustees  of  Rondout,     -  45 

Hyde  v.  Baldwin,      -        -        -  434 

V.  Cookson,  -      165,  168,  169 

V.  Cooper,    -        -        -        -  211 

V.  Goodnow,        -        -     632,  653 

V.  Moffat,     -        -        -     776,  777 

V.  Stone,       -        -        -        -  629 

Hydraulic  Eng.  Co.  v.  McHaffe,  83 

Hylyard's  Estate,       -       .       -  677 

Ichison  V.  Lee,  -       -  -       -    342 

Idaho,  The,         -        -  -        -    164 

Ihl  V.  Railroad  Co.,    -  -        -      12 

Ijams  V.  Rioe,    -        -  -        -    619 

liledge  V.  Goodwin,  -  -  26,  41,  42 

lilies  V.  Fitzgerald,    -  -        -     134 
Illinois    Central    R.    R.    Co.   v. 

Able,         -        -  -        -    804 

V.  Cobb,       -        -  83,  717,  721 

V.  Downey,  -  -        -    749 

V.  Hammer,         -  -        -    757 

V.  Parks,      -        -  -        -    811 
Illinois  &  St.  L.  R.  R.  Co.  v.  Mc- 

Clintock,      -        -  -        -    604 
Illsley  V.  Jewett,       -     357,  588,  589 


Pages. 

Imbush  V.  Mechanics'  Bank,    -  364, 

375 

Incledon  v.  Northcote,      -        -  608 
Indianapolis,  etc.  R.  R.   Co.  v. 

Birney,         -        -        -        -  106 

Independent  Ins.  Co.  v.  Thomas,  333 

lugalls  V.  Bills,           .        -        -  63 

Ingersoll  v.  Campbell,       -        -  623 

V.  Jones,      -        -        -        -  244 

Ingledew  v.  Cupp,     -        -        -  478 

Ingraham  v.  Arnold,         -        -  664 

V.  Hall,        -        -        -        -  179 

V.  Lawson,  -        -        -        -  196 

V.  Postell,    -        -        -        -  677 

Ingram  v.  Drinkard,         -        -  666 

V.  Rankin,  -        -        -        -  174 

Inman  v.  Griswold,  -        -        -  349 

Insurance  Co.  v.  Bell,        -        -  305 

V.  Huclibergers,          -        -  715 

V.  Marr,       -        -        -        -  382 

V.  Tweed,     -        -        -        -  34 

lonides  v.  Universal  Ins.  Co. ,   33,  43 

Ipswich  Manuf.  Co.  v.  Story,  -  357 

Ireland  v.  Elliott,      -        -        -  230 

Irvin  V.  Hazleton,      -        -        .  709 

Irvine  v.  Barrett,       -        -        -  632 

V.  Millbank,         -        -        -  427 

V.  Myers,      -        -        -    312,  316 

Irving  V.  Greenwood,        -        -  244 

V.  Manning,         -        -        -  477 

V.  Viana,      -        -        -        -  471 

Irwin  V.  Paulett,        -        -    899,  402 

V.  Pittsburgh,  etc.  R.  R.  Co.,  693 

Isaacs,  Estate  of,       -        -        -  623 

Isaacs  V.  McAndrew,        -        -  536 

Isenhart  v.  Brown,    -        -        -  609 

Isham  V.  Davidson,  -        -        -  277 

Isle  Royal  M.  C.  Co.  v.  Horton,  169 

Ivenson  v.  Althorp,  -        -        -  490 

Ives  V.  Carter,    -        -        -        -  743 

v.  Farmers'  Bank,       -        -  663 

V.  Hulet,      -        -        -        -  208 

V.  Merchants'  Bank,  -        -  599 

V.  Van  Epps,        -     372,  279,  293 


Jack  V.  Hudnall, 

. 

- 

- 

215 

Jacks 'V.  Bell,     - 

- 

- 

- 

741 

V.  Darrin,     - 

. 

- 

. 

833 

Jackson  v.  Bailey, 

- 

- 

- 

403 

V.  Baker, 

. 

- 

- 

525 

V.  Bellevieu, 

. 

- 

. 

38 

V.  Bo  wen,    - 

. 

. 

. 

350 

V.  Cleveland, 

. 

. 

. 

518 

V.  Covert,    - 

- 

. 

- 

762 

v.  Ci-afts,     - 

- 

- 

- 

471 

V.  Dickenson, 

- 

- 

- 

809 

V.  Jackson, 

- 

. 

. 

816 

V.  Jacobs,     - 

- 

- 

- 

458 

V.  Law.       443, 

473, 

473, 

697, 

,  704 

V.  Lewis, 

- 

_ 

- 

470 

V.  Lloyd, 

- 

- 

- 

693 

TABLE   OF   CASES   CITED. 


xlix 


Pagea. 

Jackson  v.  Noble, 

-    219 

V,  People,     - 

-    206 

V.  Eathbon, 

-    776 

V.  Shawl,     - 

-    578 

V.  Smith, 

-    677 

V.  Smitlison, 

-      54 

v.  Stackhouse,  220,  234,  435,  440, 

442 

V.  Starkweather,         -        -    434 

V.  Williamson,    -        -        -    804 

V.  Wood,      -        -        .        ,    60(5 

Jacksonville  v.  Lambert,  -        -    811 

Jacobs  V.  Adams,       -        -        -    621 

V.  Davis,      -        -        -    190,  195 

V.  Hoover,  -        -        -        -    2'Sl 

V.  Louisville,  etc.  R.  R.  Co.,     757 

Jacot  V.  Emraett,       -      584,  622,  677 

Jaccjues  v.  Witbv,      -        -        -    350 

Jaffray  v.  Dennis,      -     632,  663,  664 

Jaffrey  v.  Cornish,     -        -    370,  378 

Jaggers  Iron  Co.  v.  Walker,     -    376 

James  v.  Adams,       -        -        -    118 

V.  Brown,    -        -        -        -     305 

V.  Hodsden,         -        -    106,  155 

V.  Hubbard,         -        -        -    303 

V.  Isaacs,      -        -     384,  386,  428 

V.  Lawrence,       -        -     177,  179 

V.  Lawrenceburg  Insurance 

Co.,        -        ...        277 

V.  Malone,    -        -        -    398,  407 

V.  Morgan,  -        -        -        -    491 

V.  Wilson,    -        -        -        -    814 

Jamison  v.  Woodruff,       -        -    278 

Jane  v.  Hagan,  ...    692 

Jaqueth  v.  Hudson,       478,  480,  481, 

490,  492,  512,  526 

Jarbee  v,  McAtee,      -        -    465,  468 

Jarnigan  v.  Fleming,        -        -    232 

Jarvis  v.  Rogers,        ...    281 

v.  Sewall,     ...        -    1.34 

Jasper  v.  ParneU,       -        -        -    747 

Jauch  V.  Jaucli,        -        -        -    231 

Jay  V.  Almy,      -        -        .        .    630 

V,  Whitfield,        -        -        -      28 

Jebsen  v,  E,  &  W.  India  Dock 

Co., 243 

Jefferson  v.  Adams,  -        -    738 

Jeffersonville,  etc.  R.  R.  Co.  v. 

Rogers,  -  .  .  .  7,50 
Jeffrey  v.  Bigelow,  -  -  -  100 
Jencks  v.  Alexander,    417,  419,  421, 

422 

V.  Coleman,         ...    7.58 

Jenks  V.  Burr,  -        -        -        -    464 

Jenkins  v.  Beal,         -        -    409,  423 

V.  Briggs,     -        -        -        -    468 

V.  Fowler,    ...        -    748 

V.  Freyer,     -        -        -        -    303 

V,  Hart,        -        -        -        -    208 

V.  Stanker,  -        -        -        -     164 

Jenness  v.  Cutler,      -        -        -    674 

Vol.  I— d 


Pages. 

Jenness  v.  Parker,     -        -        -    291 

Jennings  v.  Loring,  -        -        -      14 

V.  Maddox,  -        -        -        -    721 

V.  Mayor,     -        -        -    459,  463 

V.  Maudenhall,    -        -    448,  454 

V.  Shriven,  -        -        -        -    354 

Jennison  v.  Gray,     -        -      56,  518 

V.  Hapgood,         -        -    592,  623 

V.  Parker,    -        -     362,  378,  383 

Jernegan  v.  Harrison,      -        -    533 

Jervis  v.  Smith,         -        -    306,  309 

Jetter  v.  Glenn,         .        ,        .    134 

Jewell  v.  Weston,     -        ,        „    283 

V.  Wright,  -        -        -        -    647 

Jewett  V.  Cunard,     -        -    204,  205 

V.  Dringer,  -        -        -        -    164 

V.  Gage,       -        -        -        -      71 

V.  Wanshura,      -        .        -    219 

V.  W^hitney,         -        -        10,  11 

Job  V.  Collier,    -        -        -        -    353 

Johannesson  v.  Borchsenius,  -    239 

John  V.  John,    -        -        ,    375,  379 

Johns  V.  Collins,        -        -    290,  437 

Johnson's  Appeal,      -        -    414,  423 

Johnson  v.  Anderson,       -        -    494 

V.  Arnold,    -        -        -        -     133 

V.  Atlantic,  etc.  R.  R.,       -    710 

V.  Ballou,     -        -        -        -    164 

V.  Bank  of  North  America,    374 

V.  Barber,    -        -    .    -        -     749 

v.  Bentley,  -        -        -        -    674 

V.  Blank,     -        -        -        -    134 

V.  Boon,       ...        -    410 

V.  Braman,  ...    426 

V.  Brown,    -        -        -        -    76*3 

V.  Camp,      -        .        -        -    747 

V.  Carre,      ....    224 

V.  Clay,        -        -        -        -    698 

V.  Cleves,     -        -        -    875,  377 

V.  Courts,     ....      24 

V.  Durant,   -        -        -        -    597 

V.  Eicke,      -        -        -        -    623 

V.  Gorham,  ...    770 

V.  Gray,       ....    492 

V.  Haggin,  -        .        .        -    622 

V.  Hoffman,         -        -        -    286 

V.  Kolyoke,  -        -        -    159 

V.  Husband,        ...    805 

V.  Johnson,  -      373,  374,  421 

V.  Jones,       ....    255 

V.  Lancaster,       ...    443 

V.  Matthews,       -        -         76,  84 

v.  Mullen,    -        -        -        .823 

V.  Reed,        -        -        -        -    432 

V.  Robbins,  -        -    403,  421 

V.  Smith,      -        -     739,  742,  745 

V.  Stear,        -        .        -        -      13 

V,  Sumner,  ...    629 

V.  Thompson,      ...    572 

V.  Triggs,     -        -        -    470,  697 

V.  Van  Kettler,  763,  766,  811,  813 


TABLE    OF    CASES    CITED. 


Pages. 

Johnson  v.  Wallis,     -        -  -    897 

V.  Weed,      -        -        -  -    377 

V.  Weednian,      -        -  -    721 

V.  Wells,      -        -        -  -    106 

V,  Wells  F.  &  Co.,      -  -     159 

V.  Williams,         -        -  664,  773 

V.  Wilner,    -        -        -  -    277 

Johnston  v.  Bennett,         -  -        7 

V.  Brannan,         -        -  -    677 

V.  Clay,        -        -        -  -    443 

V.  Colnnabian  Ins.  Co.,  -    781 

V.  Cowan,    -        -        -  -    504 
V.  Crawford,         ...    742 

V.  Morrow,           -        -  -    813 

Jones  V.  Arthur,         -        -  448,  461 
V.  Ballett,    -        -     4?9,  480,  431 

V.  Berryhill,         -        -  493,  576 

V.  Boyce,     -        -        -  -      63 

v.  Broadhurst,     -        -  384,  429 

V.  Davids,    -        -        -  -    358 

V.  Ennis,      -        -        -  -    586 

V.  Grimmett,       -        -  .    823 

V.  Hannovan,      -        -  -      12 

V.  Harris,     -        -        -  -    823 
V.  Johnson,           ...    440 

V.  Jones,       -        -        -  745,  746 
V.  Kelgore.  -        -     415,  416,  423 

V.  Kennedy,         -        -  809,  820 

V.  King,       -        -        -  -    815 

V.  Maloney,          -        -  -    401 

V.  McLean,           .        .  -    568 
V.  Merrimack  R.  L.  Co.,     -    808 

V.  Murphy,  -        -        -  -    815 

V,  My  rick,    -        -        -  -     303 

V.  Perkins,  -        -        -  403,  428 

V.  Quennepiac  Bank,  220,  224 

V.  Ranson,  -        -        -  -    432 

V.  Rapilly,   -        -        -  -    724 

V.  Ricketts,          -        -  -    427 

V.  School  District,      -  -    160 

V.  Shawan,  -        -        -  -    372 

V.  Smith,     -        -        -  -    399 

V.  Steamboat  Cortes,  -  -    158 

V.  Tarletou,          -        .  .    471 

V.  United  States,         -  401,  420 

V.  Ward,      -        -        -  623,  677 
V.  Williams,       140,  399,  587,  621 

V.  Woodbury,      -        -  -     132 

Jordan  v.  Gallup,      -        -  -      13 

V.  Gillson,    -        -        -  -        8 

V.  Lewis,      -        -        -  ■     -    496 

V.  Trumbo,  -        -        -  -    562 

V.  Warner  Ins.  Co.,     -  -    281 

Josselyn  v.  McAllister,      -  -    237 

Joule  V.  Taylor,          -        -  -       10 

Joy  V.  Hopkins,          -        .  -     786 

Judd  V.  Dennison,     -        -  279,  291 

V.  Littlejohn,       -        -  -     353 

Judson  V.  Ensign,      -        -  -    45G 
Jumel  V.  Jumel,         ...    304 

Jutte  V.  Hughes,       -       -  106,  765 


Kalb  V.  Bankhead, 
Kaley  v.  Shed,  - 
Kanaga  v.  Taylor, 
Kane  v.  Fisher, 
V.  Sanger, 


Pages. 

-  721 
238,  289 

-  681 

-  299 

-  594 


Kansas,    etc.    Railroad    Co.    v. 

Little,  -  -  -  -  721 
Kansas      Stock    Yard    Co.     v. 

Couch,         -        -        -    796,  797 
Karasich  v.  Hasbrouck,    -        -     198 
Karr  v.  Karr,     -        -        -        -    623 
Kaskaskia  Bridge  Co.  v.  Shan- 
non,     -        -        -        -    291,  292 
Kasson  v.  People,      -        -        -    437 
Kavanaugh  v.  Day,  -        -    632,  642 
V.  Janesville,       -        -        -    812 
Kay  V.  Fredrigal,      -        -        -    232 
Keane  v.  Branden,    -        -        -    899 
Kearney  v.  Farrell,  -        -        -    788 
V.  Fitzgerald,      -        -        -    219 
V.  King,       _        _        -        ■    641 
Keeble  v.  Heckex'ingill,     -        -      70 
Keeler  v.  Bartier,      -        -        -    442 
V.  Boalmen,        -        -        -    372 
V.  Neal,        -        -        -        -    429 
V.  Salisbury,      427,  428,  430,  483 
Keen  v.  Vaughan,     -        -        -    427 
Keenan  v.  Cavauaugh,      -        -      20 
Keene  v.  Dilke,  -        -        -      98 

V.  Keene,  -  -  549,  551,  552 
Keing  v.  Ingraham,  -  -  -  770 
Keirn's  Appeal,  .        -        -    309 

Keith  V.  Hinkster,  -  -  -  198 
Keller  v.  Blasdell,  -  -  -  207 
V.  Fisher,  -  -  -  448,  467 
Kelley  v.  Fond  du  Lac,  -  -  38 
V.  Third  Nat.  Bank,  -  -  761 
Kellogg  V.  Chicago,  etc.  R.  R. 

Co.,  -        -        -        -  25,  36,  61 

V.  Curtis,    .-        -        -        -    476 

V,  Denslow,         -        -    263,  291 

V.  Kranser,  _        .        .    798 

V.  Miller,      -        -        -        -    645 

V.  Olmsted,  -        -        -    433 

V.  Richards,       426,  437,  429,  431 

V.  Sweeney,         -        -    329,  333 

V.  Winslow,         -        -        -    278 

Kelly  V.  Bradford,     -        -     160,  245 

V.  Partington,      -        -        -      67 

V.  Pember,  -        -        -     275,  277 

V.  Rogers,    -        -        -        -    743 

V.  Sherlock,         -        -        -      12 

Kelsey  v.  Murphy,     -        -     709,  713 

V.  Remer,     -        -        -        -    155 

Kelty  V.  Second  Nat.  Bank,      -    874 

Kemble  v.  Farren,  481,  482,  487,  492, 

512,  522,  523 

Kemmel  v.  Wilson,  -        -        -    379 

Kemmerrer  v.  Edelman,  -        -      12 

Kemp  V.  Amalker,     -        -        -    287 

V.  Finden,    -        -        -        -    136 


TABLE   OF   CASES   CITED. 


Pagcfi. 
Kemp  V.  Knickerbocker  Ice  Co.,  5)3, 

514 


V.  Peters.      -        -        - 
Kempton  v.  Brownson,     - 
Kenilall,  Ex  jmrte,     - 
Kendall  v.  May, 

V.  N.  E.  Carpet  Co.,   - 

V.  Parker,    -        -        - 

V.  Robertson, 

V.  Stokes,     -        -        - 
Kendillon  v.  Jlaltby, 
Kennedy  v.  Barnwell, 

V.  Crandall, 

V.  Gregory, 

V.  North  Mo.  R.  R.  Co., 

V.  Strong,     -        -        - 

V.  White  well, 

V.  Woods,    -        -        - 
Kennester  v.  Avery, 
Kenney  v.  First  Nat.  Bank, 
Kennon  v.  Dickins,  - 

V.  McRae,    -        -        - 
Kent  V.  Bown,  -        -        - 

V.  Cartrall,  -        -        - 
Kentz  V.  Taylor, 
Kenum  v.  Henderson, 
Keuyon  v.  Woodruff, 
Keoiigh  V.  McNitt,     - 
Kephart  v.  Butcher, 
Kerknian  v.  Vanlier, 
Kerksey  v.  Kerksey, 
Kermeyer  v.  Newby, 
Kermott  v.  Aver, 
Kerneman  v.  Monahan,    - 
Kerton  v.  Braithwaite, 
Kerr  v.  Laird,    -        -        - 

v.  Love,       -        -        - 

V.  McGuire, 
Kerthaus  v.  Owings, 
Kester  v.  Rockell, 
Ketchum  v.  Crippefi, 

V.  Wells,      - 
Key  V,  Henson,  -     280, 

Keyes  v.  Devlin, 

V.  Roder,      -        -        - 

V.  Western  Vt.  S.  Co., 

KJibby  V.  Jones, 
Kidder  v.  Barker, 

V,  Kidder,    -        -        - 

V.  Norris,     -        -        - 
Kidgell  V.  Moor, 
Kilbourne  v.  Bradley, 

V.  State  Savings  Inst., 
Kilderhouse  v.  Saveland, 
Kilgore  v,  Dempsey, 

V.  Powers,   - 
Killian  v.  H(n-ndon,  - 
Killorin  v.  Bacon, 
Kimball,  The,     -        -      373, 
Kimball  v,  Connolly, 


-  SI  5 

-  ?>il 

-  ;5o8 

-  71(8 

-  308 

-  798 

-  C61 

-  184 

-  67 

-  614 

-  377 

-  234 
721,  733 

-  639 
174,  639 

-  760 
379,  383 

-  360 

-  681 

-  773 
549,  554 

-  291 

-  435 

-  837 

-  191 

-  373 

-  375 

-  694 

-  157 

-  376 
665,  666 

-  387 
444,  450 

-  633 

-  618 

-  786 
468,  473 

-  594 

-  741 

-  278 
290,  291 

-  230 

-  471 
159,  238, 
279,  293 

-  376 

-  14 

-  356 
406,  408 

-  767 

-  573 

-  715 

-  617 

-  645 
549,  550 

-  689 

-  419 
375,  377 

6 


Pages. 

-  498 
6 
G 

206,  435 

-  633 
10,  13 

-  449 


Kimball  v,  Farren,    - 

V.  Lero}',      -        -        - 

V.  Stone,      -        -        - 

V.  Wilson,   -        -        - 
Kimbrel  v.  Glover,    - 
Kimel  v.  Kimel, 
Kincaid  v.  School  District 
King,  Ex  parte. 
King  v.  Diehl,    -        -        - 

V.  Gillett,     - 

V.  Hoare,     -        -        - 

V.  Howard, 

V.  Hutchins, 

V,  King,       -        -        _ 

V.  Payham, 

V.  Palmer,    -        -        - 

V.  Talbot,     ... 

V.  Wise,       -        -        - 
King  of  Sjiain  v.  Oliver,  - 
Kingman  v.  Pierce,  - 
Kingsbury  v.  Dedham, 

V.  Westfall. 
Kingston  v.  Mcintosh, 
Kingston  Bank  v.  Gay,     - 
Kinley  v.  Hill,   - 
Kinny  v.  Ensign, 
Kinsler  v.  Pope, 
Kii3  V.  Brigham, 
Kirby  v.  Marlborough, 

V.  Turner,    -        -        - 
Kirk  V.  Eaton,  -        -        - 
Kirkham  v.  Sharp,    - 
Kirwan  v.  Kirwan,   - 
Kiser  v.  Ruddick, 
Kist  V.  Atkinson, 
Kitchenman  v.  SkeU, 
Kitteras'  Estate, 
Kittle  V.  Lipe,  - 
Kleinder  v.  McGrath, 
Klein  v.  Jewett, 
Kline  v.  Central  P.  R.  R.  Co., 

V.  Wood,  -  -  - 
Klingle  v.  Ritter, 
Klingman  v.  Holmes, 
Klock  V.  Robinson,  - 
Klopfer  V.  Bromme, 
Knapp  V.  Maltby,  492,  504,  506,  513 
Knettle  v.  Crouse,  -  -  608,  609 
Knickerbocker  v.  Colver,  -  211 
Kjiickerbocker     Ins.     Co.     v. 

Eccles,      -        -        -        -        6 

V.  Gould,  -  -  538,  596,  610 
Knickerbocker  M.  Co.  v.  Hull,  818 
Knight  V.  Abbot, 

V,  Beach, 

V.  Foster,  - 

V.  Gibbs, 

V.  Mants,   - 

V.  Mitchell, 

V.  Nelson,  - 

V,  Reese, 


-  350 

-  608 

-  433 

-  316 

-  813 

-  379 

-  339 
5 

-  737 

-  608 

-  275 

-  403 
888,  703 

-  71 

-  243 

-  598 

-  346 

-  353 
•  357 

-  438 

-  134 

-  413 

-  435 

-  833 

-  10 

-  429 

-  376,  383 

-  267 

-  831 

-  309 

-  134 

-  213,  215 

-  106 
755 
819 
509 
731 
713 
770 


-  600, 


456, 

458 

443, 

704 

232, 

233 

. 

67 

. 

589 

. 

583 

_ 

213 

. 

623 

lii 


TABLE   OF    CASES   CITED. 


Pages. 

Knight  V.  Tvxrner, 

- 

- 

291 

Knobell  v.  Fuller,      - 

- 

- 

233 

Kuowles  V.  Nuuns,  - 

- 

- 

134 

Knowlton  v.  Mackey, 

- 

490, 

506 

V.  McMahon, 

- 

- 

804 

Xnox  V.  Joues, 

- 

- 

583 

V.  Lee, 

328, 

451, 

462 

V.  Light, 

- 

- 

468 

Kobbi  V.  Underhill, 

- 

- 

375 

Koeltz  V.  Blackniau, 

- 

- 

814 

Koerner  v.  Oberley, 

- 

- 

733 

Kohler  v.  Smith, 

. 

- 

550 

Kolb  V.  O'Brien, 

- 

721, 

724 

Koon  V.  Greenman, 

- 

- 

283 

Koons  V.  Miller, 

- 

- 

583 

Kornegay  v.  Wliite, 

. 

- 

628 

Kortwright  v.  Cady, 

- 

465, 

471 

Kowing  V.  Morley,   - 

- 

- 

440 

Krach  v.  Hielman,     - 

. 

- 

71 

Xragg  V.  Ward, 

- 

- 

143 

Kraus  v.  Arnold, 

. 

. 

457 

Kreider's  Estate, 

. 

. 

803 

Kreiter  v,  Nichols,    - 

. 

. 

750 

Kribbs  v.  Jones, 

. 

- 

174 

Xroni  V.  Sciioonmaker, 

- 

- 

159 

XufTert    v.    Guttenberg    Build. 

Assc,  -        -        - 

. 

- 

570 

Kuhn  V.  Meyers, 

- 

494, 

498 

Kupfer  V.  Bank  of  Galena, 

- 

333 

JKurtz  V.  Sponable,    - 

- 

- 

493 

Xyle,  Ex  parte, 

- 

- 

317 

V.  Roberts, 

- 

- 

607 

Xabbrant  v.  Myron  Lod 

ge, 

_ 

455 

Labeaume  v.  Woodfolk 

_ 

836 

-La  Costa  v.  Cole, 

. 

- 

335 

Lacour  v.  Mayor, 

- 

- 

131 

Lacy  V.  Kynaston,     - 

437 

,440, 

,  441 

V.  Lacy, 

- 

- 

356 

Ladd  V.  Blunt,  - 

. 

. 

350 

V.  Potter,     - 

. 

_ 

455 

Ladue  v.  Seymour,    - 

- 

- 

283 

La  Farge  v.  Halsey,  - 

- 

. 

275 

V.  Herter,    - 

- 

_ 

433 

La  Farge  Ins.  Co.  v.  Bell, 

. 

303 

La  Fayette  R.   R.    Co. 

V. 

New 

Albany,    - 

- 

- 

191 

V.  Winslow, 

- 

786, 

798 

La  Fayette  Benefit  Society  v. 

Lewis,  -        -        - 

- 

- 

570 

Laflin  v.  Willard,      - 

- 

- 

13 

La  France  v.  Krager, 

. 

- 

319 

Xiahman  v.  Crouch,   - 

- 

- 

455 

Laidley  v.  Merrifield, 

- 

- 

600 

Laiug  V.  Meader, 

. 

453, 

461 

Lair  v.  Jelf, 

- 

603, 

604 

Lake  v.  Merrill, 

_ 

_ 

763 

V.  Milliken, 

. 

_ 

71 

V.  Park, 

- 

_ 

633 

Lakeman  v.  Grinnell, 

- 

. 

639 

Lamb  v.  Stone,  - 

- 

- 

51 

Pages. 
Lamb  v.  Walker,  -  -  194,  196 
Lambert  v.  Craig,  -  -  813,  813 
Lamoui'e  v.  Carol,  -  -  -  799 
Lamphear  v.  Buckingham,  773,  776, 

779 
Lamping  v.  Hyatt,  -  -  -  760 
Lampman  v.  Cochran,  478,  488,  491, 

506,  538 
Lamprell  v.  Bellericay  Union,  406 
Lamson  v.  Marvin,  -  -  -  290 
Lamson  &  Goodnow  M.  Co.  v. 

Russell,  -  -  -  -  301 
Lanahan  v.  Ward,  -  -  681,  690 
Lancashire  R.  R.  Co.  v.  Evans,  191 
Lancaster  v.  Harrison,  -  -  443 
Lane  v.  Atlantic  Works,      20,  36,  64 

V.  Cook,       -        -        -        -     183 

V.  Gluckauf,        -        -        -    330 

V.  O  wings,  -  220,  224,  440,  441 
Lane  Co.  v.  Oregon,  -        -    338 

Lang  V.  Moore,  -        -        -        -    593 

v.  Watson,  -  -  -  -  454 
Langdon  v.  Bowen,  419,  430,  431,  433 

V.  Bullock,  -        -        -        -    773 

V.  Stokes,  -  -  -  -  433 
Lange  v.  Kohner,      -        -    447,  455 

V.  Werk,  -  -  -  -  505 
Langredge  v.  Levy,  -  -  28,  29,  73 
Langston  v.  South  Carolina  R. 

R.  Co.,  -  -  -  543,  549 
Lannen  v.  Albany  Gas  L.  Co.,  25,  64 
Lanoy  v.  Duchess  of  Athol,  -  303 
Lansdale  v.  Graves,  -        -    400,  401 

V.  Mitchell,  -        -        -    403 

Lansing  v.  Goelet,     - 

V.  Rattoone, 

V.  Smith, 

V.  Van  Alstyne, 

V.  Wiswell, 
Lanuse  v.  Baker,     342 
Lapham  v.  Green, 
Lapice  v.  Smith, 
Laraway  v.  Perkins, 
Larimore  v.  Wells,    - 
Larios  v.  Gurity, 
Larkin  v.  Buck, 

V.  Butterfield, 
Larned  v.  Buffington, 
Larrabee  v.  Bald"win, 
Lasala  v.  Holbi'ook,  - 
Lash  V.  Cruse,    - 

v.  Edgerton, 

V.  Zambert, 
Lasher  v.  Williamson, 
Latapee  v.  Pecholier, 
Latham  v.  Darling,  - 

V.  Sumner,  - 
Laubenheimer  v.  Mann,  507,  509,  815 
Laughlin  v.  Harvey,  -        -    338 

Lautz  V.  Frey,    -        -        -        -    763 
Law  V.  Jackson,        -        -       -    470 


-  350 

-  607 

6 

-  301 

6 
343,  638,  663 

-  304 

-  633 

-  763,  765 

-  397 

-  139 

-  177 

-  208 
«  233 

-  439 

4 

-  796 

-  431 

-  549 

-  275 

-  427 

-  493,  561 

-  280 


TABLE   OF   CASES    CITED. 


liii 


Pages. 
Law  V.  Sutherland,  -  -  -  411 
Lawler  v.  Earle,  -  -  -  5 
Lawrence,  Ex  parte,  -        -    350 

Lawrence  v,  Cowles,      493,  561,  576, 

580 
V.  Fast,  -  -  -  -  829 
V.  Hagerman,  -  -  142,  721 
V.  Jenkins,  -  -  -  25,  41,  47 
V.  Mt.  Vernon,  -  -  -  71 
V.  Murray,  -  -  -  -  628 
V.  Rice,  ...  -  13 
V.  Schuylkill,  -  -  -  379 
T.  Stearns,  -  -  -  -  806 
V.  Trustees,  etc.,  -        -     543 

V,  Wardwell,       -        -        77,  84 
V.  Woods,    ...        -    432 
Lawrencehurgh    Nat.   Bank    v. 

Stevenson,  -        -        -        -    360 

Lawson  v.  Ilicks,      -        -        -        5 

V.  Price,       -        -        -        -     153 

Lawton  v.  Chase,       -        -        -    790 

V.  Sweeny,  -        -        -        -    125 

Layton  v.  Hogue,      -        -        -    628 

Lea  V.  Whitaker,       -      476,  489,  525 

Leach  v.  Thomas,      -        -        -    820 

Leake  v.  Brown,        -        -        -    372 

Lear  v.  James,  -        -        -        -    37,5 

Leary  v.  Laflin,  -        -    489,  526 

Leatlierdale  v.  Sweepstone,   456,  457 

Leavenworth  v.  Brockway,      -    666 

V.  Packer,    -        -        -        -    289 

Leavett  v.  Burr,        -        .        .    ?,^q 

Leavitt  v.  Cutler,       .        -        .    770 

V.  ]\Iarrow,  -        -        -        -    429 

Le  Blanch  v.  L.  N.  W.  R"y  Co.,  156, 

238 

Ledbetter  v.  Morris,  -        -      13 

Lediard  v.  Bencher,  -    260,  393 

Ledvard  v.  Jones,     -        -    246,  247 

Lee'v.  Ashbrook,      -        -        -    283 

v.  Baldwin.         -        -        -    382 

V.  Biddis,     -        -        -    447,  455 

V.  Clark,       -        -        -        -     135 

V,  Clements,         -        -    279,  280 

V.  Davis,      -        -        -    671,  673 

V.  Early,       -        -        -        -    406 

V.  Fountaine,      -        -        .    410 

V.  Gibbons,  -        -        _    205 

V.  Overstreet,       -        -        -    525 

V.  Peckham,        -    874,  375,  403 

V.  Rilev,       -        25,  41,  43,  47,  54 

V.  Tinges,     -        -        -    375,  377 

V.  AVarner,  -        -        -        .    507 

V.  Wilcocks,        -        -        -     342 

V.  Woolsey,  -    227,  230,  231 

Leech  v.  Baldwin,     -        -        -    281 

Leeds  v.  Cook,  -        -        -        -     254 

Leef  V.  Goodwin,      -        -        .    41;} 

Leffingwell  v.  Elliott,      *  134,  290 

Leffler  v.  McDennotte,     -        -    632 

Lef  tly  V.  Mills,  ...    446 


Pages. 

Legal  Tender  Cases,  -    326,  454 

Leger  v.  Banoflfo,      -        -        -     365 

Legge  V.  Harlock,     -        -        -     5U6 

Leggett  V.  Cooper,   -        -        -    468 

V.  M.  L.  Ins.  Co.,        -    489,  506 

Legh  V.  Legh,   -        -        -        .    436 

Legoux  V.  Wante,     -        -        -    562 

LeGrew  v.  Cooke,     -        -        -    469 

Leicester  v.  Walter,  -        -    233 

Lsidre  v.  Bucher,      -        -        -    826 

Leighton  v.  Wales,  -        -        -    50.> 

Lelaud  v.  Stone,        -        -        -    491 

V.  Tousley,  -         -         -         -     76$ 

Le  Loir  v.  Bristow,    -        -        -    226- 

Lemon  v.  Trail,  -        -        .    278 

Lenwig  v.  Ralston,  -        -        -    633 

Lentz  V.  Choteau,      -        -        -    118 

Leonard  v.  Belknap,         -        -    164 

V.  N.  Y.  etc.  Tel.  Co.,        -      83. 

V,  Pope,       -        -        -        -    736 

V.  Villars,    -        -        -        -    678 

LePage  v.  McCrea,  428,  429,  431,  433. 

Leroy  v.  Wiggins,      -        -        -     110 

Lessees  of  Dilworth  v.   Sinder- 

ling, 593 

Lester  v.  Wright,  -  -  -  231 
Letclier  v.  Woodson,  -  -  594 
Lever  v.  Lever,  -  -  -  .  623 
Levi  V.  Brooks,  -  -  -  -  754 
Levy  V.  Bank  of  U.  S.,  -  -  367 
V.  Levy,  -  -  -  428,  432 
Lewis  V.  Atlas  M.  L.  Ins.  Co.,  109, 

110,  195 
V.  Bacon,  -  -  -  678,  687 
V.  Bradford.  -  _  _  587 
V.  Cook,  -  -  .  -  762 
V.  Ingersoll,  -  _  .  643 
V.  Johns,  -  -  -  211,  212' 
V.  Jones,  -  -  -  426,  427 
V.  Lee,  -        -        -        -      95 

V.  Lewis,     -        -        -     227,  618 
V.  Lozer,      -        -        -        .     375 
V.  McElvain,       -        -        -    674 
V.  Owen,      -        -        -        -    632 
V.  Paull,       -        -        -        -    763 
V.  Peach,     -        -        -        -    196 
V.  Peake,      -        -        -        -    140 
V.  Read,        -        -        -        -    211 
V.  Smith,     -        -        -        -    82» 
V.  Trickey,  -        -        -     786,  798 
Lewiston  v.  Junction  R.  R.  Co.,  4.34 
Leyde  v.  Martin,        ...    615 
Licardi  v.  Cohen,       -        -        -    632 
Liddell  v.  McVickers,        -        -    592- 
Life,  etc.    Ins.   Co.  v.  Mechan- 
ics' Fire  Ins.  Co.,        -        -    785 
Liggett  V.  Smith,       -        -        -    283 
Lightbody  v.  Ontario  Bank.      322, 

364,  367 
Ligliter  v.  Stover,  -  -  -  277 
Lightfoot  v.  Price,    -        -        -    687 


liv 


TABLE   OF    CASES    CITED. 


Pages. 

Lightner  v.  ]\Ienzel,  -  -  -    505 

Ligor  V.  Duiin,  -        -  -  -    433 

Limes  v.  Zaur,  -        -  -  -    380 

Lincoln  v.  Bassett,    -  -  379,  380 

V.  Blauchard,       -  -  -    134 

V.  Claffliu,  -        -  -  -    628 

Linder  v.  Monroe,     -  -  828,  830 

Lindley  v.  Miller,      -  -  285,  28G 

Liudsey  v.  Anesley,  -  -  491,  504 

V.  McClelland,     -  -  -    376 

V.  Stevens,  -        -  -  406,  408 

Line  v.  Nelson,  -        -  -  -    208 

Lines  v.  Mack,  -        -  -  -    645 

Linford  v.  Lake,        -  -  -    227 

Linn  v.  Minor,  -        -  -  -    327 

Linsley  v.  Bushnell,  -  -    743 

Linton  V.  Harlev,      -  -  -        8 

Liotard  v.  Graves,     -  583,  588,  615 

Lishy  V.  O'Brian,       -  -  -     382 

Little  V.  Banks,          -  -  527,  598 

V.  Boston,  etc.  R.  R.  Co.,  -      20 

V.  Hobbs,     -        -  -  -    204 

V.  Larrabee,        -  -  805,  80S 

V.  McGiiire,          -  -  .     154 

V.  Nichols,  -        -  -  45G,  459 

V.  Phoenix  Bank,  -  -    378 

V.  Riley,       -        -  -  633,  683 

Little    Schuylkill    Nav.  Co.    v. 

Richards,     -        -  -  -    216 

Littleton  v.  Richardson,  -  135,  137 

Lively,  The,        -        -  -  -    111 

Livermore  v.  Claridge,  -  -    410 

v.Northrup,         -  -  -    240 

V.  Rand,       -        -  -  -    419 

Li  vie  V,  Jenson,         -  -  -      32 

Livingston  v.  Burroughs,  747,  748 

V.  Harrison,         -  465,  468,  703 

V.  Miller,     -        -  -  -    607 

V.  Platner,  -        -  -  -    828 

V.  Tomkins,         -  -  -    562 

V.  Tremnier,        -  -  -    208 

Llewellyn  v.  Llewellyn,  -  -    430 

Lloyd  V.  Carrier,       .  -  -    589 

V.  Galbraith,        -  -  -    305 

V.  Morris,     -        -  -  -    820 

V.  Scott,       -        -  -  -    632 

Llojan  V.  Brogden,   -  -  -     169 

Loader  v.  Hinson,     -  -  -    758 

Lockwood  V.  Thorn,  -  -    431 

Lockyer  v.  Jones,       -  -  -    447 

Loder  v.  Kekule,       -  _  .    132 

Lodge  V.  Decas,         -  -  _    428 

v.  Spooner,  ...    344 

Logan  V.  Anderson,  -  306,  308,  309 

V.  Caffrey,   -        -  -  -     175 

V.  Jennings,         -  -  .    773 

V.  Tibbitts,  -        -  -  -    279 

Loker  v.  Damon,       70,  96,  106,  148, 

150 

Lomaxv.  Bailey,       -  -  •    283 

v.  Pendleton,      -  -  -    623 


Pages. 
Lombard  v.  Chicago,  etc.  R.  R. 

Co., 814 

Long  V.  Bowring,      -        -        -    478 

V.  Towl,       -        -        -        -    525 

.  V.  Waters,  -        -        -        -    447 

Longacre  v.  State,     -        -        -    819 

Long  Island  Bank  v.  Townsend,  405, 

406 

Longman  v.  Fenn,     -        -        -    773 

Longmeid  v.  Halliday,     -        -      29 

Longridge  v.  Dowille,      -    430,  475 

V.  Levy,       -        -        -        -      69 

Longnell  v.  Ridinger,        -        -    607 

Long-worth  v.  Askreu,      -        -    500 

V.  Mitchell,  -        -        -    327 

Lougworthy  v.  McKelvy,         -    143 

Lonley  v.  Hays,         _        -        -    417 

Lonsdale  v.  Church,  -        -    599 

Loomis  V.  Storrs,       -        -        -    350 

V.  Tyler,      ....    837 

Loop  V.  Litchfield,     -        -        -      29 

Lorane  v.  Wilson,     -        -        -    374 

Lord  v.  Baldwin,        -        -        -    204 

V.  Carnes,    -        -        -        -    204 

V.  Gaddis,    -        -        -        -    535 

V.  Mayor,  etc.,     -      709,  711,  713 

Lord  Ashtown  v.  White,      496,  499. 

503 
Lords,   Bailiffs,  etc.   v.  Corp.  of 

Trinity  House,    -        -        -      41 
Loring  v.  Cook,         -        -    459,  463 
V.  Gurney,  -        -        -        -    583 
V.  Mansfield,        -        -        -    353 
Lormi  v.  Tucker,       -        -        -    266 
Lott  V.  Swezey,  -        _        -    830 

Loud  V.  Morrell,  -  -  -  375 
Louden  v.  Burt,  _  -  _  370 
Lougee  v.  Washburn,  -  -  666 
Louisville,    etc.    R.    R.    Co.    v. 

Hodge,      -        -        -        -    813 

V.  Mahony,  -        -        -    757 

v.  Smith,     -        -        -    723,  755 

Lounsberry  v.  Snyder,      -        -    286 

Love  V.  Gibson,         -        -        -    135 

V.  Oldham,  -        -        -    278 

Lovejoy  v.  Robinson,        -        -    287 

Lovett  V.  Cornwell,  -        -        -    375 

V.  Cowman,        -        -        _    563 

Low  V.  Blodgett,       -        -        -    353 

V.  Cross,      -        -        -        -    204 

V.  Forbes,    -        -        -        -    433 

v.-  Martin,    -        -        -        -    164 

Lowe  V.  Blair,   -        -        -        -    443 

'v.  Nottle,     -        -        -        -    529 

V.  Peers.      -        -     475,  505,  558 

Lowell  V.  Boston,   etc.    R.    R. 

Co.,  -        -        -      134,  137,  143 

v.  German  R.  Church,        -    831 

V.  Parker,    -        -        -    236,  239 

V.  Spaulding,       -        -        .    231 

Lowenstein  v.  Cliappell,  -        75,  77 


TABLE    OF    CASES   CITED. 


Iv 


Loweth  V.  Smith, 

_ 

X  (.' 

202 

Lowry  v.  Burrell, 

. 

. 

515 

V.  Fisher,     - 

. 

- 

376 

V.  Hurd,       - 

. 

- 

290 

V.  IMurrell,  - 

- 

- 

364 

V.  Western  Bank, 

- 

635 

Lucas  V.  Flinn,  - 

- 

-    159, 

738 

V.  Spence,    - 

. 

-    568, 

572 

V.  Trumbull, 

. 

-    239, 

240 

V.  Wasson,  - 

- 

- 

200 

V.  Wilkinson,       -        -  352,  384 

Luce  V.  Jones,    -        -        -  -    238 

Ludlow  V.  Yonkers,  -        -  -     123 

Ludwick  V.  Huntzinger,   -  -     543 

Lutfluirrow  v.  Henderson,  265,  280 

Luling    V.    Atlantic    Mut.  Ins. 

Co.,       -        -        -        -  330,  333 
Lumberman's  Insurance  Co.  v. 

Preble,          -        -        .  -    435 

Lumbkin  v.  Nance,    -        -  -    600 

Lundey  v.  Gye,  -        -        -  49,  55 

Lumpley  v.  Weed,     -        -  -    449 

Lund  V.  Tvngsboro,   -        -  64,  788 

Lunn  V.  Gage.    -        -      280,  285,  286 

Lupton  V.  White,       -        -  164,  784 

Luse  V.  Jones,     -       -        -  -    803 

Lush  V.  Falls,     -        -        -  -    246 

V.  Lambert,          -        -  -    696 

Lusk  V.  Briscoe,         -        -  -    763 

V.  Druse,       -        -        -  607,  611 

V.  Smith,      -        -        -  -    616 

Luson  V.  Smith,  ...    814 

Luster  v.  State,  -        -        -  -    805 

Luton  V.  King,  -        -        -  -     160 

Lutterell  v.  Hazen,     -        -  -    750 

Lycoming  Ins.  Co.  v.  Mitchell,      477 

Lyman  v.  Babcock,    -        -  -    524 

V.  Bank  of  U.  S.,        -  -    376 

V.  Cartright,         -        -  -     388 

V.  Clark,        -        -        -  -    436 

V.  Lyman,    -        -        -  -     303 

Lynch  v.  Baldwin,     -        -  285,  286 

V.  Barr,         -        -        -  -    772 

V.  Debiar,     -        -        -  -    621 

V.  Knight,    -        -        -  -     159 

V.  Nunlin,    -        -        -  26,  64 

V.  Utica  Ins.  Co.,         -  -    310 

Lynde  v.  Tliompson,           -  -    506 

L3im  V.  Bruce,  -        -        -  -    427 

Lyon  V.  Hancock,       -        -  -    746 

V.  Magagnos,        -        -  -    608 

V.  Merrick,  -        -        -  -      54 

V,  Yates,       -        -        -  -    242 

Lytlev.  Ault,      -        -        -  -    428 

M.  K.  &  T.  R.  R.  Co.  V.  Weaver,  810 

Maberly  v.  Robins,     -        -  -    597 

MacDougall  v.  Maguire,    -  -    287 

Macev  v.  City.    -        -        -  -        5 

Mackv.  Patrhin,        -        -  279,  285 

Mackay  v.  Ford,         -        _  -        5 


"Pages, 
Mackey  v,  Hodgson,  -  -  -  693 
V.  Mackey,  -  -  -  -  315 
Macomber  v.  Dunham,  -  -  543 
Macree  v.  Clark,  -  -  126,  196,  247 
Magee  v.  Carmack,  -  322,  364,  370 
V.  Holland,  -      721,  746,  747 

V.  Lavell,  -  -  -  476,  525 
Maghee  v.  C.  &  A.  R.  R.  Co.,  61 
Magner  v.  Knowles,  -        -    628 

Magoffin  V.  Patton,  -  -  608,  609 
Magraw  v.  McGlynn,  -  -  447 
Magruder  v.  Randolph,  -  -  185 
Maguire  v.  Howard,  -        -    289 

Mahler  v.  Newbaur,  -        -    449 

Mahon  v.  N.  Y.  Cent.  R.  R.  Co.,  199 
Mahone  v.  Williams,  -  -  416 
Mahoney  v.  Ashton,  -        -    803 

V.  Mahoney,  ...  750 
Mahony  v.  Robbins,  -        -    815 

Maier  v.  Canavan,  -  -  -  376 
Maillard  v.  Duke  of  Argyle,  372,  376 
Mailler  v.  Express  Prop.  Line,      24, 

106,  630 
Main  v.  King,  -  -  -  -  506 
Major  V.  McLester,  -  -  -  283 
Makepeace  v.  Coates,  -  311.  314 
Maiden  v.  Tyson,  -  -  -142 
Malecek  v.   Tower  Grove,  etc. 

R.  R.  Co.,  -  -  -  -  750 
Mali  V.  Lord,  -  -  -  -  753 
Mailer  v.  Eno,  -  -  -  -  795 
Mallough  V.  Barber,  -        -    131 

Malone  v.  Donnally,         -        -    762 
V.  Murphv.  -        -        -    741 

Maltram  v.  Mills.  -  -  437,  442 
Mandeville  v.  Welch,  -  -  178 
Maneeley  v.  McGee,  -    373,  374 

Mauix  V.  Maloney,    -        -        -    804 
Mann  v.  Carter,         -        -        -    346 
V.  Cross,       -        -        -        .    683 
V.  Lawrence,       -        .        -    592 
V.  Marsh,     .        -        -    398,  399 
V.  Taylor,     -        -        -        -    605 
Mannett  v.  Sturgess,         -        -    550 
Manning  v.  Lunn,     -        -        -    460 
Manny  v.  Stockton,  -        -        -    562 
Mansell  v.  Lewis,       -        -        -        8 
Mansfield  v.  Dorland,        -        -    317 
Mapps  V.  Sharpe,      -        -    568,  572 
Marble  v.  Keyes,       -        -        -     184 
V.  Worcester,      -  31,  37,  45 

Marbury  v.  Marbury,  -  -  342 
Marce  v.  Kupfer,  -  -  -  322 
Marcy  v.  Fries,  ...    243 

Mare  v.  Rajid.  -  -  -  -  277 
Marfell  v.  Soutli  Wales  R'y  Co.,  46 
]\Iarford  v.  Wo<jdworth,  -  -  733 
Marguard  v.  Wheeler,  -  809,  819 
Marietta  Iron  Works  v.  Lotti- 

more,  -----  550 
Marine  Bank  v.  Rushmore,  465,  463 


Ivi 


TABLE    OF    CASES    CITED. 


Pages. 

Markel  v.  Spilter,       -  -  -    426 

Marker  v.  Miller,       -  -  229,  230 

Markle  v.  Hatfield,    -  -  359,  363 

Marlatt  v.  Clary,        -  135,  140,  145 

Marribold  v.  Schlecting,    -  -    454 

Marriott  v.  Hamilton,  -  -     353 

Marryats  v.  White,    -  -  412,  433 

Mars  \.  Southwick,  -  -  -    586 

Marsden  v.  City  &  County  Ass. 

Co,        •        -        -  -  33,  43 
Marsh  v.  Fraser,        -  -  616,  618 
V.  Lasher,    -        -  -  -    563 
V.  Oneida  Central  Bank,    -    405 
Marshall,  Ex  parte,    -  -  -    136 
Marshall  v.  Betuer,    -  -  73,  743 
V.  Dudley,   -        -  -  600,  603 
V,  Hahn,      -        -  -  -    280 
V.  Moore,     -        -  -  305,  308 
V.  Nagel,      -        -  -  -    403 
V.  New  York  C.  R.  R.  Co.,  796 
V.  Piles,        -        -  -  -    173 
V.  Shricker,         .  .  -    630 
V.  Wood,      -        -  -  -    614 
Marsteller  v.  Crapp,  -  -  -    615 
Martin  v.  Commonwealth,  838,  839 
V.  Draher,    -        -  -  -    403 
V.  Franklin,         -  -  -    343 
V.  G.  N.  R'y  Co.,  -  -      70 
V.  Kanouse,         -  -  -    317 
V.  Martin,    -        -  608,  609,  666 
V.  Morelock,        -  -  -    806 
V.  Price,       -        -  -  -    837 
V.  Porter,     -        -  -  -     769 
V.  Sillinian,          -  -  610,  615 
V.  Taylor,     -        -  -  .     535 
Marvin  v.  Applegate,  -  -    890 
V.  Brewster,        -  -  -    833 
V.  McRae,    -        -  -  -    631 
V.  Stone,       -        -  -  -    357 
V,  Vedder,    -        -  -  .     353 
Marzetti  v.  Williams,  10, 13,  129,  497 
Marzion  \,  Proche,    -  -  -    403 
Mason  v.  Callender,  -  493,  549,  554 
V.  Croom,     -        -  -  4G5,  468 
V.  Ellsworth,        -  -  -     159 
V,  Flint,        -        -  -  -    498 
V.  Jewett,    -        -  -  -    441 
V.  Knowlton,       -  -  311,  315 
V.  Massa,      -        -  -  -    809 
V.  Payne,     -        -  -  303,  304 
V.  Sudani,    -        -  -  473,  473 
V.  Thompson,       -  -  -      70 
V.  Waite,      -        -  .  -    628 
V.  Wickersham,  -  -  -    428 
Mass  V.  Adams,          -  .  .    403 
Massachusetts  Hospital  v.  Pro- 
vincial Ins.  Co.,  -  -  -    334 
Massachusetts  Life  Ins.   Co.   v. 

Carpenter,    -        -  -  -    163 

Masten  v.  Cummings,  -  -    403 

Mastcrson  v.  Short,   -  -  -        5 


Pages. 

Masterton  v.  Mavor,  etc.,  77,  84,  114, 

138,  130,  133,  176,  195,  801 

Mateman  v.  Williamson,  -        -     596 

Mather  v.  Butler  Co.,      150,  154,  338 

V.  Faulkner,        -        -        -     389 

V.  Kinike,    -        -        -     321,  333 

Mathers  v.  Bryson,    -        -        -    427 

Matheson  v.  Kelly,    -        -        -    455 

Mathews  v.  Aikin,     -        -        -    353 

Mathewson  v.  Lydiate,      -        -    437 

Mathias  v.  Superior  Iron  Co.,  -    684 

Matt  v.  Hudson  R.  R.  Co.,         -      30 

Matteson  v.  Ellsworth,      -        -    876 

Matthews  v.    Chicopee   Manuf. 

Co.,     -    433,  435,  437,  439,  443 

V,  Switzler,  -        .        .    401 

V.  Terry,       -        -        -    227,  230 

Mattingly  v.  Darwin,         -        -     760 

Maule  V.  Ashmead,   -        -        -    286 

Maunsell  v.  Massareeme,  -    773 

Maurice  v.  Brady,     -        -        -    504 

Maverick  v.  Gibbs,    -        -        -    301 

Maxwell  v.  Day,        -        -        -    373 

v.  Kennedy,         -        -        -    749 

Maye  v.  Tappan,        -        -        -    169 

V.  Walter,    -        -        -        -        6 

Mayhew  v.  Phoenix  Ins.  Co.,   -    430 

V.  Thatcher,        -        -        -    773 

Mayler  v.  Ayliffe,      -        -        -    833 

Maynard  v.  Beardsley,    227,  230,  331 

V.  Firemen's  Ins.  Co,,         -    750- 

V.  Hunt,      -        -        -    471,  698 

V.  Maynard,        -        -    151,  238 

V.  Newman,        -        -    333,  839 

V.  Pease,      ...        -    131 

Mayo  V,  Purcell,        -        -        -    614 

Mayor,  etc.  v.  Furze,        -        -        6 

V.  Henly,     -        -        -        -        6 

V.  Mabie,      -        -     279,  385,  286 

V.  Patten,    -        -     399,  405,  409 

V.  Pentz,      -        -        -        -    789 

V.  Troy,  etc.  R.  R.  Co.,      -    134 

Mays  V.  Lewis,  -        -        -    816,  818 

McAfee  v.  Crofford,  24,  71,  770 

Mc Alexander  v.  Harris,    -    237,  333 

v.  Lee,  -        -        -        -    604 

McAllister's  Appeal,  -        -    494 

McAllister  v.  Dennin,       -    437,  439 

V.  Jerman,  -        -        -        -    510' 

V.  Reab,      264,  268,  273,  378,  583 

v.  Smith,     -        -      631,  643,  657 

V.  Sprague,  -        -    433,  439 

McAlpin  V.  Lee,         -        -        -    378 

McAndrews  v.  Tippett,     -    118,  176 

McAneany  v.  Jewett,        -        -      13 

McArthur  v.    Green    Bay,   etc. 

Co.,  -----  287 
McBoyle  v.  Reeder,  -  -  -  109 
McBnde  v.  McLaughlin,       227,  231, 

721,  745. 
McCall  v.  McDowell,         -        -    231 


TABLE    OF    CASES    CITED. 


Ivii 


Pages. 

McCalla  v.  Ely,          -  -        -  5?i3 

McCandish  v.  Newman,    -        -  282 

McCann  v.  Lewis,      -  -        -  604 

McCarthy  v.  Niskern,  -    742,  745 

McCarty  v.  Beach,    -  -        -  13 

V.  Gordon,  -        -  -    400,  408 

V.  Leggett,  -        -  -        -  815 

V.  Quiniby,          -  629,  795,  796 

McCastin  v.  State,     -  -        -  290 

McCausland  v.  Bell,  -  -        -  713 

McChesney  v.  Eogers,  -        -  831 

McClaery  v.  Jackson,  -        -  375 

McClintock  v.  Crick,  -        -  231 

V.  Cummins,        .  -        _  636 

McCloud  V.  Boulton,  -        -  10 

McCluug  V.  Jackson,  -        -  379 

McClure  v.  Cole,        -  -        -  708 

V.  Dunkin,  -        -  -    599,  601 

V.  Hall,        -        -  -        -  775 

V.  Hart.        -        -  -        -  301 

McCoUum  V.  Seward,  612,  615,  786, 

795 

McCoinber  v.  Nichols,  -        -  5 

McConnell  v.  Hampton,   -    742,  744 

V.  Kebbe,     -        -  -  9,  10,  767 

V.  Stillimas,         -  -        -  378 

V.  Thomas,  -      535,  705,  707,  708 

McConnico  v.  Curzen,  -        -  618 

McCormick's  Appeal,  -        -  308 

McCormick  v.  Crall,  -        -  594 

V.    Pennsylvania  Cent.  R. 

R.  Co..      -        -  174,  612,  629 

McCoy  V.  Danley,      -  -        -  12 

V.  Elder,       -        -  -        -  772 

McCracken  v.  Harris,  -        -  280 

V.  Webb,      -        -  -        -  108 

McCrea  v.  Purmirt,  -  -        -  433 

McCreary  v.  Fike,      -  -        -  775 

McCuUough  V.  Baker,  -        -  132 

V.  Cox,         -        -  -        -  272 

V.  Franklin  Coal  Co.,          -  433 

McCune  v.  Bet,          -  -        -  402 

V.  Eheforth,         -  -        -  454 

McCurdv  V.  Clark,     -  -        -  417 

McDaniel  v.  Crabtree,  70,  96,  98 

V.  Emanuel,         -  -        -  71 

V.  Grace,      -        -  -    290,  291 

V.  Hughes.  -        -  -        -  389 

McDaniels  v.  Bank,  -        -  427 

V.  Barnes,  398,  399,  414,  420,  423 

V.  Lapham,          -  -    427,  465 

T.  Reed.        -        .  .        .  471 

V.  Robinson,        -  -        -  70 

McDonald  t.  Christie,  -    786,  798 

V.  :\Iilroy,     -        -  -        -  280 

V.  Montague,       -  -        -  160 

V.  North,      -        -  -        -  629 

V.  Pickett,   -        -  -        -  403 

V.  Scaife,      -        -  -        -  629 

T.  Snelling,           -  -        -  32 

V.  Walker,  -        -  -        -  810 


Pages. 

McDonnell  v.  Sandford,   -  -    159 

McDougald  v.  Doughty,  -  -    449 

IMcDougall  V.  Walling,     -  -        7 
McDowell  V.  Blackstone  Canal 

Co..  "       -        -        -  -    406 

V.  Keller,     -        -        -  443,  697 

V.  Milroy,     -        -        -  -    291 

V.  Russell,    -        -        -  -     164 

McElrath  v.  Dupuy,          -  -    422 

McFadden  v.  Crawford,   -  -    615 

V.  Fortier,    -        -        -  -    421 

McFall  V.  Wilson,     -        -  -    775 

McFarland  v.  Carver,       -  -    277 

V.  Lewis,      -        -        -  -    413 

McGee  v.  Overley,     -        -  -    823 

V.  Prouty,    -        -        -  -    397 

V.  Raen,       -        -        .  -        6 

V.  Sandusky,        -        -  -    233 

McGeehe  v.  George,          -  -    562 

McGellan  v.  Crafton,         -  -     372 

McGill  v.  Bank  of  United  States,  599 

V.  Ware.       -        -        -  -    568 

McGinn  v.  Holmes,           -  -    375 

McGregor  v.  Armill,          -  -    816 

V.  Ganlin.    -        -        -  -    688 

McGrew  v.  Stone,      -        -  36,  57 

McGuire  v.  Grant,     -        -  -        4 

McHard  v.  Whitcroft,        -  444,  704 

McHardy  v.  Wads  worth,  -     275 

McHose  V.  Fulmer.      75,  92,  130,  151 

Mcllvaine  v.  Wilkins,       -  -    615 

Mclnhill  v.  Odill,       -        -  -    326 

Mclniffee  v.  Wheelock,     -  -    449 

Mclnvov  V.  Dver,       -        -  -    238 

Mcintosh  V.  Laun,     -        -  184,  190 

V.  Likens,    -        -        -  -    574 

T.  Long,       -        -        -  -    207 

Mclntire  v.  Clark,     -        -  455,  763 

Mclntyre  v.  Kennedy,       -  -    375 

V.  New  York  Cent.  R.  R.  Co.,  13 

V.  Parks,      -        -        -  -     639 

V.  Williamson,    -        -  -    435 

McKay  v.  Bryson,     -        -  196,  200 

V.  Lane,        .        .        _  -    614 

McKean  v.  See,          -        _  .    765 

McKee  v.  Bain.          -        -  -    291 

V.  Campbell,        -        -  136.  153 

V.  Commonwealth,     -  -    419 

V.  Judd,       ...  -        7 

v.  Miller,      -        -        -  -    433 

v.  Nelson,    -        -        -  -    788 

V.  Stronk,    -        -        -  -    403 

McKennan  v.  Sterrett,      -  -    593 

McKeunev  v.  Springer,      -  245,  282 

McKenzie  v.  Allen,   -        -  228,  230 

V.  Farrell.    -        -        -  -    761 

McKean  v.  Citizens'  R.  Co.,      -    755 

McKiulev  v.  Blackledge.  -  -    538 

V.  Chicago,  etc.  R.  R.  Co.,      158 

McKinney  v.  Neil,     -        -  -      63 

V.  Springer,         -        -  -    160 


Iviii 


TABLE   OF   CASES    CITED. 


Pages. 

McKinzie  v.  Nevins,  -  -    420 

McKuight  V.  Devlin,  -  -    275 

V.  Duulop,  -        -  -  582,  618 

McKora  v.  Ford,        .  -  _    455 

McKyring  v.  Bull,  258,  2G0,  389,  770, 

775 

McLachlan  v.  Evans,  -  -    320 

McLaiu  V.  Paitlierford,  -  -    772 

McLane  v.  Abrams,  -  -  550,  553 

V.  Miller,      -        -  -  -    299 

McLaren  v.  Hall.       -  -  -    375 

McLaughlin  v.  Hill,  -  -  -     180 

McLean  v.  Kerfoot,   -  -  -    280 

V.  LaFavette  Bank,  -  -    569 

McLees  v.  Felt,  -        -  -  -    761 

McLellan  v.  Crofton,  -  761,  762 

McLamore  v.  Mobson,  -  -    291 

McLeudou  v.  Frost,  -  -  -    406 

McLure  v.  Rush,        -  -  -    292 

McMahou  v.  New  York,  etc.  R. 

R.  Co.,          -        -  -  596,  612 

McManus  v.  Crickett,  -  -    749 

V.  Lee,          -        -  -  -    212 

McMillan  v.  Pegg,     -  -  -    278 

V.  Scott,       -        -  -  -    603 

McMillian  v.  Wallace,  -  -    782 

McMitt  V.  Clark,        -    477,  499,  502 

McMurray  v.  Taylor,  -  372,  375 

McNabb  v.  Wixou,    -  -  -      61 

McNair  v.  Burns,       -  -  -        7 

V.  Compton,         -  -  -     160 

McNallyv.  Sliobe,     -  -  -    617 

McNamara  v.  Kiug,  -  -  -    721 

McNatt  v.  Young,      -  -  -    234 

McNaughton  v.  Partridge,  -     375 

McNeal'v.  Blackburn,  -  -     220 

McNear  v.  McOmber,  -  -    017 

McNeil  V.  Garland,    -  -  -    225 

V.  Reid,        -        -  -  -    119 

McNiglit  V.  Ratcliffe,  -  -    123 

McPhce  V.  Wilson,     -  -  505,  509 

McQuade  v.  O'Neil,  -  -  -    762 

McQuaide  v.  Stewart,  -  -    296 

McQueen  v.  Burns,    -  -  -     640 

McRae  v.  Brown,       -  -  -     142 

McRaven  v.  Farley,  -  -  -    562 

McReynolds  v.  McCord,  -  -    784 

McSloy  V.  Ryan,        -  -  -    280 

McTavish  v.  Carroll,  -  97,  423 

Mc Waters  v.  Draper,  -  -    396 

McWhorter  v.  Say  re,  -  -    761 

v.  Standiffer,  -  -  601,  762 
McWilliams  v.  Bragg,     721,  740,  746 

V.  Holan,      -        -  -  -    721 

Mead  v.  Tiiompson,  -  -  -    210 

v.  AVlieeler,  485,  487,  498,  554,  560 

V.  York,       -        -  .  .    252 

Meade  v.  Smith,        -  .  .    804 

Meador  V.  Rhyne,      -  -  311,312 

Meagher  v.  DriscoU,  -  100,  732 

Means  v,  Milliken,     -  -  -    208 


Mears  v.  Nichols, 

V.  Smith, 
Mease  v.  Stevens, 
Meason's  Estate, 
Mecklem  v.  Blake, 


Pages. 
278,  291 

-  348 

-  545 

-  606 

-  13 


Mechanics'  Bank  v.  Hazard,     -    352 

V.  Menthorn,  -  -  -  780 
Medbury  v.  Hopkins,  -  -  631 
Medway  Nav.    Co.    v.    Earl    of 

Romney,  -  -  -  -  10 
Meech  v.  Smith,        -        -        -    582 

V.  Stoner,  -  -  -  -  8 
Megary  v.  Funtes,  -  -  -  397 
Meggot  V.  Wild,  -  -  -  409 
Me'hlberg  v.  Fisher,  -  -  -  378 
Meibus  v.  Dodge,  -  -  -  724 
Meidel  v.  Anthis,  721,  722,  738,  749 
Mell  V.  Moony,  -  -  -  279,  280 
Melledge  V.  Boston  Iron  Co.,  373,  374 
Mellendy  v.  Austin,  -  -  -  402 
Mellish  V.  Arnold,      -        -        -    804 

V.  Simeon,  -  -  -  -  344 
Memphis  v.  Brown,  -  -  -  126 
Memphis,  etc.  R.  R.  Co.  v.  "Wliit- 

field,  -  -  -  -  159,  721 
Menessinger  v.  Kerr,  -  -  233 
Menges  v.  Wertman,  -        -    674 

Mentz  V.  Second  Av.  R.  R.  Co.,  811 
Mercer  v.  Beale,        -        -     421,  600 

V.  Hall,        -        .        -        -    278 

V.  Irving,     -        -     477,  505,  526 

V.  Vose,  -  -  -  -  795 
Mercer  Co.  v.  Hacket,  -  -  684 
Merchants'  Bank  v.  Griswold,  -    645 

v.  Spalding,  .  _  .  653 
Mercliants'  Nat.  B'k  v.  Proctor,  351 
Mereditli  x.  Banks,  -  -  -  687 
Merest  v.  Harvey,  -  71,  721,  732 
Meriam  v.  Bacon,  -  -  -  388 
Merriam  v.  AVoodcock,  -  -  301 
Merrett  v.  Tliompsou,  -  -  469 
Merrick  v.  Trustees,  -        -    207 

Merrill  v.  Curtis,        -        -        -    762 

V.  Hampden,  -  -  -  71 
Merrills  v.  Law,  -  -  -  562 
Merrimac  Co.  Bank  v.  Brown,  412 
Merritt  v.  How,         -        .        _    239 

V.  Lambert,  -  -  -  471 
Merrow  v.  Huntoon,  -  -  160 
Merry  v.  Allen,  ...    430 

Merryman  v.  Cridale,  -  -  614 
Merry  weatlier  v.  Nixon,  -  -  211 
Mervine  v.  Sailor,  -  -  321,  328 
Meshke  v.  Van  Daren,  142,  374,  375 
Messick  v.  Dawson,  -  -  -  177 
Messmore  v.  New  York  S.  &  L. 

Co.,  -  .  -  81,  131,  764 
Metallic,  etc.  Co.  v.  Fitchburg 

R.  R.  Co.,  -  .  -  -  30 
Metcalf  V.  Baker,  -  -  198,  8U 
Metcalfe  v.  Dean,      -        -       -    804 


TABLE   OF   CASES   CITED. 


Hx 


Pages. 
Meh-opolitan  Bank  v.  Ten  Dyck,  ^34 
Metter  v.  Easton,  etc.  R.  R.  Co.,  004 
Metz  V.  Soule,  -  -  -  -  430 
Meyers  v.  Bums,  -  -  -  151 
Meymouth  v.  Babcock,  -  -  427 
IVIiami  Exporting  Co.  v.  United 

States  Bank,        -        -     422,  689 
Michigan  Cent.  R.  R.  Co.  t.  An- 
derson,        -        -        -        .        5 
Michael  v.  New  York  Cent.  R. 

R.  Co.,  -        .        -        .      61 

Mickle  V.  Cross,         -        -        -    622 

Mickles  v.  Hart,         -        -        -       13 

Midderkauf  v.  Smith,       -        -    118 

Midgeley  v.  Sloeomb,        -     31(»,  379 

Midig  V.  Whiteford,  -        -    413 

Mihean  v.  Brown,      -        -        -    599 

Milbown  v.  Belloni,  -        -     118,  134 

Miles  V.  Bacon,  -        -        .    539 

V.  Harrington,     -        -        -    231 

Miliken  v.  Brown,      -        -        -    428 

V.  Tafts,       -        -        -        -    419 

Millard  v.  Baldwin,  -        -        -    204 

V.  Brown,    -        -        .        -    230 

V.  Jenkins,  -        -        -        -        6 

Miller's  Appeal,  ...    309 

Miller  v.  Bank  of  Orleans,        -    5S7 

V.  Beverl}-s,  -        -    C23,  627 

V.  Burroughs,      -        -        -    543 

V.  Covert,    -        -        -     173,  179 

V.  Fenton,    -        -        -        -    441 

V.  Ford,        -        -        .        .    562 

V.  Freeborn,        ...    298 

V.  Gaither,  ...    278,  286 

V.  Garrett,  -        -        -        .     143 

V.  Gettysburg  Bank,  -        -    382 

V.  Hayes,     -        -        -        .    254 

V.  Hoe,         ....    806 

V.  Holden,  ....    464 

V.  Humiihries,     -        .        -    165 

V.  Jacobs,     -        .        -        .    307 

V.  Kempner,        ...    561 

V.  Kirby,      -        .        -        -    721 

V.  Mariners'  Church,  76,  149,  238 

T.  Montgomery,  -        .    352,  404 

V.  Powder,  .        .        -        -    225 

v.  Rael,        -        .        -        -    866 

V.  Rossier,    -        -        -        .    254 

V.  Shackelford,   -        -        -    816 

V.  Smith,     -        .      278,  790,  795 

v.  Tiffany,   ....    644 

V.  Treviliian,        .        .        .688 

V.  Weeks,     -        -        -        .    762 

V.  Wilson,    -      187.  188.  190,  196 

Millett  V.  Hayford,    -        -    220,  221 

Millison  v.  Iloeh,       -        -        -    733 

Mills  A',  Brooklyn,      ...        5 

V.  Fawks,  --        -     405,  408,  419 

V.  Fox.  ....    504 

V.  Gari-ison,         ...    177 

V.  Hall,        ....        6 


Pages. 

Mills  V.  Heeney,         ...    708 

V.  Kellogg,  -        -        -    398,  401 

Milne  v.  Moreton,      .        .        -    638 

V.  Rempublican,  .    588,  599 

Milnes  v.  Vanhorn,    .        -        -    283 

Milsora  V.  Hayward,  .    598,  S04 

Milton  V.  Blackshear,        .        .    596 

y.  Hudson  R.  &  C.  Co.,      -    238 

Milwaukee,    etc.    R.    R.    Co.   v. 

Arms,       -        .        17,  720,  724 

V.  Eble,        .        .        .        -    788 

V.  Kellogg,  ...        25,  62 

Minard  v.  Beans,        -        .    531,  593 

Minor  v.  Clark,  ...    147 

V.  Mechanics'  Bank,  -        -    207 

Minot  V.  Sawyer,      -        -    572,  575 

Missouri  R.  R.  Co.  v.  Haines,   -    191 

Missouri,  etc.  R.  R.  Co.  v.  Ft. 

Scott.        -        .        .        -    196 
y.  Ricliards,         -        .        .786 
Mitchell  y.  Barry,     ...       13 
y.  Brewster,         ...    440 
V.  Cook,       -        -   .  448,  467,  703 
y.  Cra  gg,     -        .        -        -    427 
y.  Ball,       204,  399,  403,  404,  405 
y.  Doggett,          -        -        -    673 
y.  Ehle,        .        .        .        .804 
V.  Gibson,    ....    828 
y.  Giesendorff,    -        -        -    828 
y.  Gregory,          ...    443 
y.  Harmony,       -        -        6,  714 
y.  Henderson,      ...    829 
y.  King,        ...    459.  462 
y.  Lvmau,   ...        -    573 
y.  Milbank,          -        -    823,  824 
y.  Oldfield,           .        .        -    311 
y.  Wilson,    -        -        -        .    356 
Mix  y.  Madison  Ins.  Co.,  -        .    654 
y.  State  Bank,     -        .        -    636 
Mixed  Moneys,  -        -        -        .323 
Mixer  v.  Coburn,       ...    277 
Mizell  y.  McDonald,          .        -    776 
Moberly  v.  Alexander,      -        .    277 
Mobile,  etc.  R.  R.  Co.  v.  Ash- 
croft,    721 

Moffatt  y.  Parsons,  -  -  .  449 
Mohawk  Bank  v.  Broderick,  -  378 
Mohlen's  Appeal,  -  -  _  417 
Mohn  y.  Stoner,  465,  468,  470,  697 
Molby  y.  Johnson,  -  -  -  280 
Molecek  v.  Tower  Groye  R.  R. 

Co., 721 

Moudell  V.  Steel,       -        -    246,  266 
Monroe  y.  Chalderk,         -        -    468 
V.  Hoff,        ....    375 
Montgomery     R.     R.    Co.     v. 

Stockton,  -        .        -    191 

y.  Varuer,    -        -        .        -    795 

Montgomer}^  y.  Boucher,      550,  551 

y.  Firemen's  Ins.  Co.,  -      34 

V.  Wilson,   -        .        -        -    243 


Ix 


TABLE    OF   CASES    CITED. 


Pages. 

Montoya  v,  London  Ass.  Co.,    39,  41 

Monts'v.  Witiner,      -        -        -    770 

Monument  Bank  v.  Globe  Works,  750 

Moody  V.  Baker,        -        -        66,  70 

V.  Keener,   -        -        -        -        7 

V.  Leavitt,  -        -        -        -    372 

V.  McDonald,       -        -    724,  725 

V.  Whitney,         -        -     165,  169 

Mooney  v.  Hudson  R.  R.  Co.,        812 

V.  Kennett,  .        .        -    822 

Moore, v.,        -        -    233,  234 

Moore  v.  Anderson,  -  -  -  489 
V.  Appleton,  _  -  -  211 
V.  Bowman.  -        -        -    163 

V.  Burchfield,  -  -  -  810 
V.  Caruthers,  -  -  -  280 
V.  Central  R.  R.  Co.,  -  -  159 
V.  Clay,  -  -  -  -  231 
,  V.  Cord,  ....  704 
V.  Crose,  .  -  -  .  733 
T.  Davidson,  .  -  -  632 
V.  Fitchburg  R.  R.  Co.,  «  758 
V.  Fuller,  -  -  -  -  677 
V.  Gray,  -  -  -  415,  420 
V.  Hilton,  -  -  -  495,  576 
V.  Kiff,  -  -  -  -  421 
V.  Love,  -  -  -  196,  199 
V.  McNairy,  -  -  -  260 
V.  Jloore,  -  -  -  -  246 
V.  Morris,  -  -  -  -  322 
V.  Patten,  -  -  -  601,  614 
V.  Pendergrast,  -  -  -  604 
V.  Platte  Co.,  -  -  -  525 
V.  Republic  of  Texas,  -  761 
V.  Stadden,  -        -        -    346 

V.  Tracy,      -        -        -        -    762 
V,  Vougliton,       -        -        -    586 
Moose  V.  Salt,     -        -        -        -    586 
Moravin  v.  Levy,       _        .        _    372 
Morehead  v.  Hvde,    -        -        -    174 
V.  West  Branch  Bank,   399,  400, 

403 

Morehouse  v.  Mathew^s,     -    787,  794 

Moreland  v.  Lawrence,     -        -    549 

Morly  v.  Dunbar,       -      198,  229,  230 

Morford  v.  Ambrose,         -        -    617 

Morgan  v.  Bliss,         -        -        -      51 

V.  Butterlield,      -        -        -    442 

V.  Chester,  -        -        -        -    212 

V.  Gregg,      ....     163 

V.  Heiler,      -        -         -        -     180 

V.  Jones,       -        -        -        -    549 

V.  McKee,    -        -        -        -     177 

V.  Powell.     -        -        -        -     169 

V.  Rirliai-dson,     -        -  .      -    292 

V.  Smitli,      -         -        -         -     2S5 

V.  Tarbell,    -         -        -         -     410 

Morris,  Ex  parte,        -        -        .    830 

Morris  v.  Allen,         -        -    !588,  589 

V.  Barker,    -        -        -     23;;,  234 

V.  Hoyt,       -        -     595,  679,  680 


Pages. 

Morris  v.  Langdale,  - 

67,  68 

V.  McCoy,    - 

-    498,  502- 

V.  Oakford, 

-     353 

V.  Olwine,    - 

-    309 

T.  Price, 

-     142 

V.  Rowan,    - 

-     140 

V.  Summert, 

-    224 

Morrisiana     Savings     Bank    v, 

Bauer,          .        .        -  .  54.^ 

Morrison  v.  Beckwith,      -  -  303 

V.  Davis,      -        -        -  -  59- 

V.  Jewell,     -        -        -  -  291 

V.  Kiu'tz,      -        -        -  -  307 

V.  Love  joy,          .        -  -  287 

V.  Winn,       -        -        -  -  206 

Morrow  v.  Huntson,          -  -  283 

V.  Rainy,      ...  -  327 

V.  Smith,      -         -        -  -  781 

Mors  le  Blanch  v,  Wilson,  137,  140, 

145,  147 

Morse  v.  Auburn,  etc.  R.  R.  Co.,  159^ 

V.  Cliase,      -        -        -  -  207 

V.  Crawford,        -        -  -  803 

V.  Richmond,       -        -  -  71 

V.  Sliattuck,        -        -  -  433 

v.  Sevitz.      -        -        -  -  30 

Mortimer  v.  Cradock,        -  -  784 

Mortland  v.  Hiues,     -        -  -  437 

Morton  v.  Rutherford,      -  -  673 

V.  Webb,      -        -        -  -  204 

Mosby  V.  Taylor,        -        -  -  538 

Mose  V.  Miller,  -        -        -  -  434 

Mosher  v.  Chapin,     -        -  -  494 

Mosier  v.  Caldwell,    -        -  -  4 

Mosely  v.  Taylor,       -        -  -  562 

Moss  V.  Shannon,       -        -  -  427 

Mote  v.  Chicago  &  N.  W.  R'y 

Co., 617 

Mott  V.  Mott,     -        -        -  505,  526 

Moule  V.  Garrett,       -        -  139,  145 

Moulton  V.  Safford,  -        -  -  38 

Mount  V.  Chapman,  -        -  -  604 

Mountford  v,  Gibson,        -  -  240 

V.  WiUes,     -        -        -  597,  598 

Mountney  v.  Andrews,     -  -  350 

Mousler  v.  Hai-ding,          -  -  231 

Moyer  v.  Moyer,        -        -  -  234 

V.  Pine,         -        -        -  -  233 

Moynahan  v.  Moore,         -  459,  471 

Mucklar  v.  Cross,       -        -  -  674 

Mueller  v.  Wiebracht,      -  -  403 

Muir  V.  Schenck,       -        -  310,  388 

Muirhead  v.  Kirkpatrick,  -  383 

Muldouuey  v.  111.  etc.  R.  R.  Co.,  .159 

Mullierau  v.  Gillespie,       -  -  354 

Mullen  v.  Morris,       -        -  632,  636 

Mullett  V.  Mason,       -        -  -  160 
Mundy  v.  Culver,     492,  505,  506,  528 

Munn  V.  Burch,          -        -  -  497 

Muiu-oe  V.  Stickney,          -  -  13 

Munter  v.  Bande,       ...  721 


TABLE   OF   CASES   CITED. 


Ixi 


Munter  v.  Fabei-, 

V.  Eogers,    -        -        - 
Muidock  V.  Ford, 
jMurpliy  V.  Branch  Bauk, 

V.  Evaus,     -        -        - 

V.  Fond  du  Lac,  - 

V.  Gay, 

V.  Larson,    -        -        - 

V.  Wilson,    -        -        - 
Murray  v.  Bethune,  - 

V.  Blatchford, 

V.  Burling, 

V.  Curtiu,     -        -        - 

V.  Gale,        -        -        - 

V.  Gouveneur, 

V.  Harrison, 

V.  Hudson  R.  R.  R.  Co., 

V.  Judah,     -        -    375, 

V.  Lardner, 

V.  Lovejoy, 

V.  Oliver,     -        -        - 

V.  Pennington,    - 

V.  Roosevelt, 

V.  Ware, 

V.  Wendley, 
Muse  V.  Swayne, 
Musgrove  v.  Gibbs,    - 
Musselman  v,  McElhenney, 
Myer  v.  Hurt,     -        - 
Myers  v.  Burns,      279,  285, 

V.  Byington, 

V.  Davis,      -        -        - 

V.  Estell,      -        -      265, 

V.  Malcolm, 

V.  Wells,      - 
Mygatt  V.  Wilcox,     - 
Myres  v.  Hayes, 
]Myrick  v.  Dame, 


Pages. 

-  -d-is 

-  82'J 

-  417 

-  207 

-  759 
-2,  10 

-  278 

-  748 

-  211 

-  781 

-  485 

-  238 

-  '279 

-  328 


Pages. 

-    421 


378, 


443, 


454 
814 
379 

-  684 

-  212 

-  683 
280,  285 

-  456 
587 
704 
526 

-  431 

-  571 

-  481 
286,  298 

-  458 

-  225 
277,  297 

-6,  30 

-  371 
612,  615 

-  525 

-  206 


465, 


Naglee  v.  Ingersoll,  -  -  - 
Nagle  V.  Mattison,  -  -  - 
Nailor  v.  Stanley,  -  -  - 
Nalle  V.  Veutress,  .  .  - 
2^angan  v.  Atherton, 
Nantucket  Pacific  Bank  v.  Steb- 

bins,  -  -  - 
Nantz  V.  Lober, 
Napier  v.  McLeod,  - 
Narcross  v.  Narcross, 
Narragausett,  The,  - 
Nash  V.  Hamilton,     - 

V.  Hermasella,     - 

V.  Hodgson,         -        -        . 

V.  Skinner,  -        -        -        - 
Nashville  R.  R.  Co.  v.  Chamley, 

V.  Smith,      -        -        -        - 
National  Bank  of  N.  v.  Bigler, 
National  Fire  Ins.  Co.  v.  Sackett, 
National  Lancers  v.  Lovering, 
Naylor  v.  Schenck,   -        -        - 
Neal  V.  Allison,         -        -       . 


606 
777 
305 
664 
64 

381 
466 
435 

-  70 

-  123 
8,  315 

-  489,  525 

-  408 

-  208 
281 
811 
398 
562 
614 
299 
423 


Neal  V,  Anderson, 

v.  Levris,     -        -        - 

V.  Singleton, 
Neale  v.  Wyllie, 
Neary  v.  Bostwick,   - 
Neeley  v.  McFadden, 

V.  Woodward,     -        r 
,  Neill  V.  Neill,     - 
Neilson  v.  Emerson, 

V.  Fory,        -        -        - 
Neligh  V.  Bradford,  - 
Nellis  V.  McCarn,       -     78i 
Nelson  v.  Cartmels,  - 

V.  Cook,       -        -        - 

V.  Everett,  -        -        - 

V.  Felden,    -        -        - 

V.  Oren,       -        -        - 

V.  Robson,  -        -        - 

V.  AVelliugton,     - 
Nesbett  v.  St.  Paul  L.  Co., 
Nessle  v.  Reese, 
Nettle  V.  Barnett, 
Nettles  V.  Harrison,  - 
Nevada  Co.  etc.  v.  Kidd,  - 
Neville  v.  Northcott, 
New  Haven,  etc.  Co.  v.  Hayden,  136, 

143 

V.  Vanderbilt,     -        -        - 
Newberry  v.  Lee,      -        -        . 

V.  Trowbridge,    -        -        - 
Newburgh  v.  Walker, 
Newburgh,  Ti"ustees  of,  v.  Gal 

latian,  .        .        .        _ 

Newcomb  v.  Clark,  -        -        - 
Raysor, 


-  822 

-  811 

-  140 

-  430 

-  339 

-  339 

-  639 

-  822 

-  436 

-  208 
787,  801 

-  616 

-  212 

-  494 

-  602 
465,  468 

-  468 

-  382 

-  169 

-  506 

8 

-  811 

-  761 

-  818 


24 

213 
448 
113 


134 

-  204 

-  442 
10,  13 

-  823 

-  583 

-  561 

-  586 

-  618 

-  375 

-  13 
Nichols,  198 

-  596 


V.  Wallace, 
Newell  V.  Downs, 
V.  Griswold, 
V.  Houlton, 
V.  Jones, 
V.  Keith,      - 
V.  Nixon,     • 
Newhall  v.  Gilson, 
New-  Jersey  Exp.  Co 
Newlan  v.  Schafer, 
Newlin  v.  Pyne,        -        -        -    518 
New  London  Bank  v.  Lee,        -    379 
Newman,  In  re,  Ex  parte  Cap- 
per,     -        -        -        -    504,  525 
Newman  v.  Auling,  -        -        -     609 
V.  Kershaw,        .        -        -    645 
V.  ]\IcGregor,       -        -        -    160 
V.  Smith,     -        -        -        -    769 
V.  St.  Louis,  etc.  R.  Co.,     -    721 
V.  Williams,         -        -        -    .570 
Newson  v.  Douglass,         -        -    617 
Newsum  v.  Newsum,        -        -      20 
Newton  v.  Bennett,  -        -  *   622,  626 
V.  Kinnesly,         -        -        -    549 
V.  Lochlin.  -        -        -        -    811 
V.  Newbegin,       ...    775 


Ixii 


TABLE   OF   CASES   CITED. 


Pages. 
New  Orleans,  etc.  Co.  v.  Ecli- 

oles, 148 

New  Orleans,  etc.  B.  R.  Co.  v. 

Hurst,  -        -        -        -    757 

New  Orleans,  etc.   R.  R.  Co.  v. 

Allbritton,        -        -        73   743 
V.  Burke,     -        -        -     742,  757 
V.  Bailey,     -        -        -     751,  757 
New  York  L.  &  C.  Co.  v.  Man- 
ning,     543 

New   York    Life,    etc.    Co.    v. 

Cutler,      -        -        -        -    303 
V.  Vanderbilt,     -        -        -    310 
New  York   St.   M.  Ins.    Co.  v. 

Protection  Ins.  Co.,    -        -    144 
New      York      State     Bank    v. 

Fletcher,      -        -        -     370,  431 
Niagara  Bank  v.  Rosevelt,        -    406 
Nichol  V.  Thompson,         -        -     598 
Nicholls  V.  Skeel,       -        -        -    562 
V.  "Williams,       258,  260,  893,  394 
Nichols  V.  Dusenbury,      -        -    286 
V.  Ruckles,  -        -        -        -    291 
V.  Tracy,     -        -        -        -    442 
Nickerson  v.  Soesman,      -     131,  342 
Nicoll  V.  Nicoll,         -        -        -    316 
Nieto  V.  Clark,           -        -        -    758 
Nightingale  v.  Scannell,  -        -     758 
Niles  V.  Board  of  Commission- 
ers,        678 

Nisbet  V.  Lawson,     -        .        -    623 

Niver  v.  Rassman,     -     498,  502,  525 

Nixon  V.  Carson,        .        -        -    279 

V.  Nixon,     .        -        -        -    623 

Nixsen  v.  Lyell,         -        -        -    382 

Noble  V.  Ames  Manuf.  Co.,     18,  133 

V.  Arnold,    -        -        -        -     142 

V.  Howard,  -        -     311,  316 

V.  Smitli,      ...        -    356 

V.  Walker,  -        -        -        -    562 

Nobles  V.  Bates,         -        -        -    505 

Noe  V.  Hodges,  -        -     447,  454,  617 

Noel  V.  Murray,  -        -        -     371 

Noland  v.  Clark,        -        -        -    382 

Nones  v.  Northouse,  -        -    198 

Noonan  v.  Ilsley,       .        -        -    594 

Norman  v.  Beamont,        -        -    804 

V.  Crocker,  -        -        -        -    312 

V.  Rogers,    -        -        -        -     240 

V.  Wells,      -        -        -     793,  795 

Nori'is  V.  Durliam,    ...    S20 

V.  Hall,        ....     693 

V.  Nones,     -       .        -       -    159 

V.  Philadelphia,  -        -    684 

North  V.  Cotes,  -        -    810,  811 

V.  Turner,    -        -        -        -        7 

V.  Wifkc field,       -        -        -    442 

Nortli    R.    M.    Co.    v.    Christ 

Church,        -        -        -        -     670 
Nortliam  v.  Hurley,  -        10,   13 

Northampton  Bank  v.  Bartlett,  346 


Pages. 
Northern  Penn.   R.   R.  Co.  v. 

Adams,        .        .        -        .    684 

Northern  T.  Co.  v.  Sellick,      -    629 

Northrop  v.  GraA-es,  -        -    621 

Northrup  v.  McGill,  -        -      17 

Norton  v.  Babcock,  -        -        -    290 

V.  Moore,     -        -        -        -    788 

V.  Sewall,     ...        -      28 

Nowlen  v.  Colt,  -        -        -    163 

Noxon  V.  Gregory,    -        -        -    315 

Noyes  v.  Phillips,      -        -    490,  513 

V.  Rutland,  etc.  R.  R.  Co.,      750 

V.  Ward,      -        -        -        -     142 

Nuckit  V.  Lawrence,         -        -    621 

Numan  \.  San  Francisco,      763,  764 

Nunnellee  v.  Morton,        -    600,  708 

Nurse  v.  Barns,         -        -    132,  160 

Nutall  V.  Brannin,     -        -        -    398 

Nutter  V.  Junction  R.  R.  Co.,  -    810 

Nutting  V.  McCutcheon,  -        -    553 

Nye  V.  Smith,     -        -        -        -    246 

O.  &  A.  R.  R.  Co.  V.  Fulney,   -  813 

O'Barr  v.  Alexander,         -        .  804 

O'Beirne  v.  Lloyd,     -        -        -  184 

Obermeyer  v.  Nichols,      -    606,  618 

Obhard  v.  Betham,  -        .        -  292 

O'Connell  v.  Strong,           -        -  749 

O'Connor  v.  Pittsburgh,   -        -  5 

V.  Varney,  -        -        -        -  299 

Odem  V.  Carter,        ...  454 

O'Donnell  v.  Rosenberg,  .    506,  509 

Oelrichs  v.  Spair,      ...  143 

Ogbern  v.  Hotfman,  -        -    427,  430 

Ogden  V.  Folliott,      -        -        -  658 

V.  Gibbons,          -      .  -    769,  770 

V.  GUdden,  -        .        -    304,  305 

V.  Larrabee,        -        -        -  624 

V.  Marshall,         .        -        -  156 

V.  Saunders,        ...  636 

Ogilvie  V.  Hall,          -        -        -  286 

Ohio  Life  Ins.  &  Ti'ust  Co.  v. 

Reeder,        -        -        -        -  879 
Ohio.  etc.  R.  R.  Co.  v.  Dicker- 
son,  -        .        -        -    106,  243 
V.  Irvin,       -        -        -    786,  798 
V.  Taylor,     -        -        -    786,  798 
Oil    Creek,   etc.    R.    R.    Co.    v. 

Keighson,    -        -        -        -  70 

Olcott  V.  Rathbone,  -        .        .  375 

O'Leary  v.  Rowan,    .        -        -  763 

Oliver  v.  La  Valle,     .        .        31,  63 

V.  Phelps,     -        -        -        -  413 

V.  Shoemaker,     -        .        .333 

Olmstead  v.  Brown,          -        -  48 

V.' Burke,      -        -        .        -  763 

V.  Partridge,        ...  747 

Omerod  v.  Tate,         ...  317 

Omohimdros  v.  Crump,    -        -  335 

O'Neall  V.  Bookman,     544,  550,  681, 

685 


TABLE   OF   CASES    CITED. 


Ixiii 


Pages. 

Pages. 

O'Neall  V.  Sims, 

- 

681, 

085 

Panton  v.  Panton,     - 

- 

- 

104 

Ontario  Bank  v,  Lightbody,     - 

370 

Parbury  v.  Bank  of  England,  - 

252 

Orchard  v.  Hughes,  - 

- 

- 

358 

Parchman  v.  McKeuuej',  - 

403, 

422 

Ordinary  v.  McCollum 

9         " 

. 

416 

Pardee  v.  Robertson, 

. 

- 

240 

V.  Spann,      - 

- 

350 

Parfitt  V.  Chambre,  - 

. 

_ 

496 

Oriental  Bank  v.  Fremont  Ins. 

Parish  v.  Stone, 

. 

. 

279 

Co.,      - 

. 

. 

692 

Park  V.  C.  &  S.  W.  R. 

R.  Co..  - 

121 

Orr  V.  Churchill,     485, 

492, 

494, 

556, 

V.  Clements, 

. 

_ 

290 

580 

V.  McDaniels, 

. 

_ 

703 

Osborn  v.  Bank  of  U.  1 

3., 

- 

692 

Parkens  v.  Scott, 

. 

_ 

43 

V.  Lovell,     - 

- 

827 

Parker  v.  Bigelow,    - 

_ 

_ 

574 

O'Shea  v.  Kirker, 

- 

824, 

826 

V.  Broas, 

_ 

447, 

455 

Otis  V.  Jones,     - 

- 

- 

242 

V.  Bryant,   - 

- 

. 

206 

Ottawa    University  v. 

,    Parkin- 

V,  Chambers, 

- 

- 

788 

son,  -        -        - 

- 

786, 

799 

V.  Davis, 

- 

- 

402 

V.  Welsh.     - 

- 

- 

799 

V.  Elliott,     - 

. 

. 

254 

Ottumwa  V.  Parks,    - 

136; 

,  137, 

143 

V.  Fisher,     - 

. 

_ 

817 

Ouemitte.  In  re. 

. 

370, 

379 

V.  Gilliam,  - 

. 

_ 

110 

Outen  V.  Graves, 

- 

- 

674 

V.  Gordon,  - 

. 

. 

346 

Overall  v.  Balison,     - 

. 

- 

812 

V.  Green,     10,  398, 

399, 

405, 

412, 

Overstreet  v.  Nunn, 

. 

. 

379 

413 

Overton  v.  Bolton,    - 

_ 

. 

550 

V.  Griswold, 

. 

9 

,  759 

V.  Phelan,    - 

- 

280, 

297 

V.  Holmes,  - 

. 

440, 

441 

Oviatt  V.  Pond, 

. 

- 

629 

V.  Lowell,     - 

. 

. 

765 

Owen  V.  Hodges, 

- 

- 

525 

V.  Mercer,   - 

. 

. 

417 

V.  Routh, 

- 

132, 

173 

V.  Parker,    - 

. 

. 

798 

V.  Warburton,     - 

- 

- 

804 

V.  Pringle,  - 

- 

- 

279 

Owens  V.  Rector, 

277 

,  282, 

,  289 

V.  Shackleford,   - 

- 

721, 

758 

V.  Sturgis.    - 

- 

- 

279 

V.  Simonds. 

. 

18 

Owenson  v.  Morse,    - 

364 

,  371, 

,  375 

V.  United  States, 

_ 

. 

379 

Parkes  v.  Prescott,    - 

. 

. 

67 

Pacific  Ins.  Co.  v,  Conrad, 

- 

71 

Parket  v.  Gregory,     - 

. 

. 

291 

Page's  xVppeal,   - 

- 

- 

608 

Parkham  v.  Harney, 

- 

- 

804 

Page  V.  Bucksport,    - 

- 

- 

71 

Parks  V.  Ingram,    398, 

399, 

406, 

419, 

V.  Dauforth, 

. 

. 

206 

420 

V.  Freeman, 

. 

- 

211 

Parmalee  v.  Lawrence, 

5*3, 

572, 

574, 

V.  Newman, 

- 

549, 

597 

658, 

,  674 

V.  Parker,    - 

. 

_ 

212 

V,  Wilks,      - 

_ 

_ 

60 

V.  Pavey,     - 

. 

- 

111 

Parrott  v.  Den,  - 

- 

. 

700 

Paine  v.  Bonney, 

- 

- 

402 

V.  Knickerbocker  Ice  Co.,  - 

629 

V.  Boston,    - 

. 

- 

799 

Parsons  v.  Hughes,   - 

- 

. 

436 

V.  Caswell,  - 

. 

549, 

554 

V.  Martin,     - 

. 

. 

174 

V.  Farr, 

- 

227, 

245 

V.  Pettingill, 

- 

- 

237 

V.  Voorhees, 

. 

- 

376 

V.  Sexton,    - 

. 

- 

246 

V.  Weber,     - 

. 

. 

509 

V.  Sutton,     - 

15L 

,  155, 

,238 

Pajolus  V.  Holland,  - 

- 

- 

256 

V.  Tread  well. 

. 

. 

622 

Palethorpe  v.  Lesher, 

. 

- 

440 

Partenheimer  v.  Van  Order 

,     * 

215 

Paley  v.  Osborne, 

- 

- 

820 

Partridge  v.  Gilbert, 

- 

590 

Pallett  V.  Sargent,     - 

- 

234, 

236 

Passenger  v.  Thornburn,  111 

,130 

,194 

Palmer  v.  Andover,  - 

.  ; 

36,  37,  45 

Passenger  R'y  Co.  v. 

Philadel- 

V.  Crosby,    - 

- 

- 

824 

phia. 

- 

- 

621 

V.  Euback,  - 

. 

- 

760 

V.  Young,    - 

- 

750, 

754 

V.  Leffler,     -    493, 

545, 

554, 

501 

Pastine  v.  Adams, 

- 

. 

64 

V.  Reynolds, 

. 

. 

761 

Pastorious  v.  Fisher, 

_ 

-9,  12 

V.  Stockwell, 

- 

- 

615 

Pate  V.  Gra3%     - 

- 

550, 

618 

V.  Wombougli,    - 

. 

. 

651 

Patnote  v.  Sanders,  - 

- 

- 

160 

V.  Wylie,      - 

. 

. 

702 

Patochi  V.  Central  Pacific  R.  R. 

V.  Yarrington,     - 

. 

. 

631 

Co.,      - 

. 

. 

819 

V.  York  Bank,     - 

. 

770, 

820 

Patrick  v.  Clay, 

_ 

_ 

618 

Paisley  v.  Anderson, 

- 

- 

132 

V.  Greenway, 

. 

. 

13 

Pautou  V.  HoUaud,    - 

- 

- 

4 

v.  Hazen,     - 

- 

- 

225 

Ixiv 


TABLE   OF    CASES    CITED. 


Pages. 

Patten's  Appeal,        -  -  -  309 
Patten  v.   Chicago,   etc.   R.  R. 

Co.,  -        -        -  -  811,  814 

V.  Libby,      -        -  -  -  765 

Patterson  v.  Cox,      -  -  -  453 

T.  Ely,          -        -  -  -  761 

v.  Hulings,          -  -  283,  289 

V.  McNeelly,        -  -  -  541 

V.  Sharp,      -        -  -  697,  703 

V.  Stewart,  -        -  -  -  594 

V.  United  States,  -  -  819 

V.  Westervelt,      -  -  -  246 

Pattison  v.  Hull,     398,  399,  414,  415, 

423 

V.  Jenkins,  -        -  -  -  674 

Patton  V.  Caldwell,    -  -  -  135 

V.  Gamey,   -        -  -  -  820 

V.  Hamilton,        -  -  -  815 

Patty  V.  Milne,  -        -  -  -  39^ 

V.  Pease,      -        -  -  -  305 

Paul  V.  Arden,  -        -  -  -  820 

V.  Cliristie,  -        -  -  -  696 

V.  Slason,     -        -  -  14,  15 

V.  Witnian,         -  -  -  135 

Pawlet  V.  Sandgate,  -  -  599 

Pawling  V.  Sartain,  -  -  664,  773 

Payne  v.  Bennett,     -  -  -  433 

V.  Clark,      -        -  -  -  691 

V.  Cutler,     -        -  -  -  291 

V.  EUiott,     -        -  -  -  7 

V.  Ellzey,     -        -  -  -  762 

V.  Fox,        -        -  -  -  292 

V.  New  South  Wales  Coal 

Co., 433 

V.  Rogers,    -        -  -  -  221 

V.  Sherwood,       -  -  -  155 

Payton  v.  Butler,      -  -  30,  31 

Peabody  v.  Peters,     -  -  -  348 

Peace  v.  Stennett,     -  -  -  430 

Peacock  v.  Banks,     -  664,  666,  772 

V.  Dickerson,      -  -  .  459 

V.  Young,    -        -  -  -  70 

Peak  V.  Lemon,         -  -  _  242 

Pearce  v.  Heunessy,  -  549,  681 

T.  Wallace,          -  -  -  633 

V.  Wilkins,          -  -  -  442 

Pearl  v.  Clark,          -  -  399,  400 

V.  Wells,      -        -  -  -  442 

Pearsall  v.  Dwight,  -  -  -  631 

Pearson  v.  Bailey,     -  -  -  5G2 

V.  Darrington,     -  -  -  623 

V.  Duane,     -        -  -  .  105 

V.  Parker,    -        -  -  -  372 

V.  Thomason,       -  -  -  428 

V.  Williams,        -  506,  508,  512 

Pease  v.  Barber,        -  -  -  621 

V.  Shippen,           -  -  -  233 

V.  Smitli,     ...  -  629 

Peck  V.  Mayo.    -      682,  636,  645,  653 

Peckering  v.  Peckoring,  -  -  209 

Peckham  v.  Barcalow,  -  -  317 


Pages. 
Peckham  v.  Burlington,  -  -  212 
Peden  v.  Moore,  -  -  265,  279 
Peebles  V.  Gee,  -  -  '-  421,687 
Peet  V.  Chicago,  etc.  R.  R.  Co.,  100 
V.  Whitmore,  -  -  -  828 
Peirce  v.  Rowe,  _        -        .    682 

Pekin  V.  Winkel,  -  -  -  803 
Pelter  v.  Smith,  -  -  -  448 
Peltz  V.  Eichele,  -  -  18,  196 
Pence  v.  Christman,  -        -    563 

V.  Huston,  -        -        -        -    270 
Peudall  V.  Northwestern  Bank,  359, 

360 
Pendleton  St.  R.  R.  Co.  v.  Roh- 

mann,  .        _        _        -    812 

Penley  v.  Watts,  -  -  -  140 
Fennel's  Case,  -  -  -  427,  429 
Pennell  v.  Duffisld,  -  -  -  419 
V.  Woodburn,  -  -  -  140 
Pennsylvania  Coal  Co.  v.  Blake,  408 
Pennsylvania,  etc.  Co.  v.  Durey,  470 
Pennsylvania  &  Ohio  C.  Co.  v. 

Graham,      -        -        -        -    159 
Pennsylvania     R.     R.     Co.     v. 

Books,      -        -        -    106,  158 
V.  Bunnell,  -        -        -    798 

V.Dale,  -  -  -  -  198 
V.  Hope,  -  -  -  -  26 
V.  Vandiver,  -  -  -  758 
Pennypacker  v.  Umberger,  409,  474 
Penrose  v.  Hart,  -  -  -  687 
Fenson  v.  Gooday,  -  -  -  821 
Pentifex  v.  Rignold,  -        -       13 

People  V.  Baker,  -  -  -  376 
V.  Brenan,  -  -  -  -  387 
V.  Canal  Commissioners,  599,  605 
V.  Common  Pleas,  -  -  804 
V.  Cook,  -  -  -  -  333 
V.  County  of  New  York,  421,  677 
V.  Eastwood,  -  -  787,  788 
V.  Gaines,  -  -  -  709,  711 
V.  Gashiere,  -  .  -  628 
V.  Goodwin,  -  -  -  740 
V.  Hallett,  -  -  -  -  10 
V.  Hopson,  -  -  -  -  351 
V.  Howell,  -  -  -  371,  376 
V.  Hudson  R.  R.  R.  Co.,  -  7 
V.  Judges,  etc.,  -  -  -  315 
V.  Lambert,  -  -  -  665 
V.  Lott,  -  -  -  -  246 
V.  Mayor,  etc.  of  Albany,  57 
V.  New  York,  -  -  -  596 
V.  New  York  Com.  P.  C,  316 
V.  Supervisors  of  Rich- 
mond, ....  253 
People's  Ice  Co.  v.  Steamer  Ex- 
celsior, -  -  -  194,  195 
Peoria    M.    &    F.    Ins.    Co.    v. 

Lewis,       -        -        -     596,  610 

V.  Whitehill,        -        -        -     822 

Perham  v.  Coney,     -        .        -    240 


TABLE   OF   CASES    CITED. 


Ixv 


Pages. 

Perkins  v.  Beck,        -        -     461,  463 

V.  Cady,       -        -        -        -     349 

V.  Duulop,  -        -        -        -    448 

V.  Fourniquet,     -      599,  6C0,  714 

V.  Freeman,         -        -        -    2o9 

V.  Gilman,  -        -        -        -    443 

V.  Lvman,   -        -        -     502,  527 

V.  ?,]issouri,  etc.  R.  R.  Co.,     757 

V.  Washington  Ice  Co.,       -     131 

Perkyns  v.  Baynton,  -        -    710 

Perley  v.  Baloh,         -        -     265,  277 

V.  B.  C.  &  M.  R.  R.  Co.,     -     191 

V.  Eastern  R.  R.  Co.,   -       20,  20 

Perrin  v.  Lyman,       -      670,  673,  674 

Perrine  v.  Hotclildss,        -        -    793 

Perrot  v.  Pittfield,     -        -        -    349 

Perrott  v.  Shearer,    -        -        -    243 

Perry  v.  Boilean,        -        -        -    820 

V.  Chester,  -        -        -        -    314 

V.  Roberts,  -        -        -        -    417 

V.  Taylor,     -        -        -        -    549 

V.  Washburn,      -        -        -     605 

PeriT  Co.  V.  Selma,  etc.  R.  R. 

Co., 605 

Peter  v.  Beverly,        .        .        -    375 

Peterborougli  v.  Jeffrey,  -        -    803 

Peters  v.  Anderson,  398,  405,  406,  409 

V.  Warren  Ins.  Co.,    -        -      33 

Peterson  v.  Haiglit,  -        -        -    286 

V.  AVheeler,  -        -        -    437 

Petre  v.  Buncombe,  -        -    597 

Petrie  v.  Hannay,     -        -     808,  820 

V.  Smith,      -        -        -        .    454 

Pette  V.  Tenn.  M.  Co.,      -        -    110 

Pettigrew  v.  Summers,     -        -     549 

Pettis  V.  Bloomer,     -        -     509,  530 

V.  RaY,  -        -        -        -    563 

Pettit  V.  Mercer,        -        -        -    143 

Peyton's  Case,   -        -        -        -    483 

Pfeil  V.  Kemper,        -        -     795,  799 

Phelan  v.    Albany,   etc,   R.   R. 

Co.,  -----  518 
Phelps  V.  Johnson,  -  220,  224,  440 
V.  New  Haven,  etc.  Co.,  -  198 
V.  Owen,  -  -  -  .  734 
V.  Paris,  ...  -  280 
V.  Tavlor,  -  -  -  -  397 
V.  Town,  -  -  -  -  781 
Philadelphia      Loan      Co.      v. 

Towner,       -        -        -        -    568 
Philadelpliia,  etc.  R.  R.   Co.  v. 

Derby,       -        -     749,  750,  758 

V.  Howard,  -        -        -     118 

v.  Larkin,    -        -        -     721,  734 

V.  Lewis,      -        -        -        -    570 

V.  Quigley,  -        -        -        -    750 

PhilbrookV.  Burgess,        -        -    187 

Phillips  V.  Behn,       -        -        -    816 

v.  Berick,     -        -        -     177,  179 

V.  Bhike,      ....    3(34 

V.  Dugan,    -        -        -        .    333 

Vol.  I  — e 


Pages. 

Phillips  V.  FeiTy,       -        -        -    199 

V.  Gaston,    -        -        -        -    455 

V.  Hoyle,     -        -        -    733,  766 

V.  Im  Thurn,       -        -        -     636 

V.  Kent,       -        -        -        -    809 

V.  Malone,  -        -        -        -    827 

V.  Moses,     -        -        -        -    408 

V.  Munger,  -        -        -    286 

V.  Pennywit,       -        -        -    204 

V.  Terry,      -        -    187,  786,  794 

V.  Tliompson,      -        -        -    383 

V.  Williams,         -        -        -     609 

Pliilpot  V.  Fowler,    -        -        -    804 

V.  Jones,      -        -        -    405,  408 

V.  Kelly,      -        -        -        -    739 

V.  Taylor,     -        -       31,  103,  140 

Phinney  v.  Baldwin,  -    493,  561 

Phipps  V.  Addison,   -        -        -    773 

Phoenix  Ins.  Co.  v.  Allen,    323,  363, 

377,  378,  383 

V.  Centennial  Ins.  Co.,       -    478 

V,  Gray,       ....    363 

Pickard  v.  Bankes,    -        -        -    333 

Pickens  v.  Haj-den,  -        -        -    827 

Pickering  v.  Pulsifer,       -        -    763 

Pickett  V.  Ford,         -        -        -     147 

Pickwood  V.  Wright,        -        -    763 

Pierce  v.  Benjamin,  -    239,  241 

V.  Bowley,  -        -        -    465,  466 

v.  Conant,  .        -        .    575 

V.  Dart,        -        -        .        -        6 

V.  Fuller,     -        -        -    505,  507 

V.  Gilson,     ...        -        7 

V.  Hoffman,         -        -        -    281 

V,  Hosmer,  -        -        -      13 

V.  Jung,       -        -    481,  490,  506 

V.  Knight,  -        -    409,  415 

V.  Parker,    -        -        -        -    443 

V.  Robie,      ...        -    204 

V.  Rowe,      -        -        -    629,  693 

V.  Sweet,     -    414,  420,  433,  443 

V.  Tuttle,     -        -        -        -    311 

V,  Williams,         -        -        -     136 

V.  Wood,      -        -        -        -    813 

V.  Woodward,     -        -        -     198 

Pierrepont  v.  Barnard,      -    164,  165 

Pierson  v.  Finney,     -        -        .     763 

V.  Hooker,  -        -        -        -    435 

V.  McCahill,        -        -    437,  430 

Pike  V.  Dilling,  -        -        -    739 

V.  Pike,        -        -        -        -    204 

Pilkinton   v.    Commissioner    of 

Claims,  -  -  -  -  324 
Pillow  V.  Brown  -  -  -  696 
Pilmore  v.  Hood,  -  -  67,  68 
Pinckney  v.  Singleton,  -  -  600 
PindaU  v.  Bank  of  Marietta,        403, 

680,  688 
Pine  V.  Smith,  -  -  -  -  655 
Pinham  v.  Tuckington,  -  -  597 
Piukerton  v.  M.  L.  R,  R.  Co.,  133,  173 


Ixvi 


TABLE   OF   CASES   CITED. 


Pages. 

Pinney  v.  AncTnis,     -        -        -    148 

V.  Barnes,    -        -        -    177,  184 

Pintard  v.  Tuckington,     -        -    375 

Piper  V.  Kingsbury,  -        -    126,  244 

V.  Menifee,  -        -        -    281 

Pipperly  v.  Stewart,  -        -    613 

Pitelie?  V.  Livingston,       -     140,  594 

Pitkin  V.  Leavitt,      -        -    135,  136 

Pittraan  v.  Barrett,  -        -        -    541 

Pitts  V.  Bloomer,       -        -        -     506 

Pittsburgli  V.  Grier,  -        -        -      27 

V.  Scott,       -        -        -        -        6 

Pittsburgh     Coal    ]\I.     Co.     v. 

Greenwood,         .        -        -    760 
Pittsburgh,    etc.   R.   R.    Co.   v. 

Andrews,         -        -    106,  158 

V.  Caldwell,  ...      64 

V.  Chicago,  -        -        -    829 

V.  Donahue,        -        -        -     749 

V.  Hinds.     -        -        -        -    758 

Pitzer  V.  Harmon,     -        -        -     372 

Plant  V.  Condit,         -        -        -    268 

Planters'  Bank  v.  Stockman,   -    423 

V.  Union  Bank,  -        -        -    814 

Plants'  Manuf.  Co.  v.  Fulvey,     376, 

378,  380 
Plath  V.  Braundorff,  -  -  811 
Piatt  V.  Brand,  -        -    275,  289 

V.  Robinson,        -        -        -    562 
V.  Walrath,         -        -        -    431 
Player  v.  Warn,         ...     825 
Pleasants  v.  North  Beach,  etc, 

R.  R.  Co.,     -        -        -        -        9 

Plevin  V.  Henshall,    -        -        -    260 

Plimi^ton  V.  Gardiner,       -    763,  765 

Plomer  v.  Long,        .        -        -    401 

Plumb  V,  Ives,  -        -        -    767,  770 

Plumlagh  V.  Dawson,        -      12,  815 

Plummer  v.  Erskiue,         -        -    403 

V.  Harbut,  -        -        -        -      13 

V.  McKean,  -        -        -    496 

v.  Penobscot  L.  Asso.,        -    153 

V.  Rigdon,    -        -        -        -     159 

Plumstead's  Appeal,  -        -    358 

Poett  V.  Stearns,        -        -        -    337 

Poillon  V.  Martin,      -        -        -     310 

Poindexter  v.  La  Roche,  414,  415,  433 

Pointer  v.  Smith,       -        -     415.  435 

Polglass  V.  Oliver,     -        -     447,  448 

Polhemus  v.  Annin,  -        -        -    618 

V.  Herman,  ...    282 

Polhill  V.  Walter,      .        -        -      30 

Polk  V.  Daly,      -        -        -        -     177 

Polk  County  v.  Syphen,   -        -    831 

Pollard  V.  Lyon,        -        -        -        6 

V.  Pleasant  Hill,  -        -    684 

V.  Porter,     -        -        -         10,  13 

V.  Yoder,     -        -        -     531,  019 

Pollock  V.  Calglazure,       -     330,  343 

V.  Ehle,        -        -        -        -    614 

V.  Glazier,   ...     658,  674 


Pages. 

Pomeroy  v.  Ainsworth,    -  -    633 

V.  Rice,        -        -        -  -    374 

Pomplirey  v.  Eyre,    -        -  -    300 

Pond  V.  Harris,           -        -  95,  143 

V.  Home,     -        -        -  -    674 

V.  Merrifield,        -        -  10,  13 

Powder  v.  Scott,        -        -  -    33!> 

Pong  V.  De  Lindsay,          -  324,  454 

Ponsenby  v.  Adams,         -  -    508 

Pontiac  v.  Carter,      -        -  -        5 

Pool  V.  Divers,  -        -        -  -    233 

v.  McLeod,  -        -        -  -    207 

Poole  V.  Tumbridge,       444,  698,  703 

Pope  V.  Dodson,         .        _  -    739 

V.  Nickerson,       .        -  -    653 

V.  Tunstali,           -        -  431,  433 

Porter  v.  Boone,        -        -  -    350 

V.  Botkins,  -        -        -  -    233 

V.  Davis,      -        -        -  -    315 

v.  Ingraham,       -        -  -    350 

v.  Munger,  -        -        -  -    663 

v.  Nash,       ...  -    627 

v.  Rummery,       .        -  -    810 

v.  Seller,      -        -        -  -    743 

V.  Steamboat  N.  E.,   -  -    105 

V.  Talcott,   -        -        -  -    375 

V.  Woods,    -        -      109,  160,  280 

Portis  V.  Merrill,        -        -  -     561 

Portman  v.  Middleton,      -  -      84 

Post  V.  Mann,     -        -        -  -      73 

v.  Tradesmen's  Bank,  -    379 

Postlethwaite  v.  Garret,   -  -    573 

Postmaster  Gen'l  v.  Furher,     -    419 

V.  Norvill,   -        -        -  -    401 

Potomac,  The,   -        -        -  -    204 

Potomac  Co.  v.  Union  Bank,  -    677 

Potter  V.  Brown,       .        -  -    635 

V.  England,          -        -  -    291 

V.  Fromont,         -        -  763,  765 

V.  Liblaey,    -        -        -  -    763 

V.  McPherson,     -        -  -    518 

Poidton  V.  Lattimore,       -  246,  266 

Powe  V.  Powe,  -        -        -  -    703 

Powell  V.  Burroughs,        -  489,  504 

V.  Deveney,          -        -  -      26 

V.  Guy,        -        -        -  -    619 

v.  Henry,     -        -        -  -     383 

V.  Knighten,        -        -  -    339 

V.  Salisbury,        -        -  25,  47 

V.  White,     -        -        -  -    358 

Powers  V.  Lynch,      -        -  -    635 

V.  Presgroves,      -        -  231,  234 

V.  Ware,      -        -        -  -     198 

Powles  V.  Page,         .        -  -    439 

Praeder  v.  Gremm,   -        -  -     143 

Prairie  Farmer  Co.  v.  Taylor,  -    285 

Pratt  V.  Adams,       643,  615,  647,  649 

V.  Foote,      -        -        -  349,  375 

V.  Northam,        .        _  -    357 

V.  Thomas,  -        -        -  -    823 

V.  Universalist  Society,  -    430 


TABLE   OF   CASES    CITED. 


Ixvii 


Pages. 
Pratt  V.  Walbridge,  -        -    573 

Pray  v.  Maine,    -        -        -        -    352 

Preble  v.  Baghuest,  -        -        -    478 
Preeble  v.  Murraj",    -        -        -    468 
Prehn  v.  Royal  Bank  of  Liver- 
pool,      129 

Prentiss  v.  Barnes,    -        -        -    763 

V.  Shaw.       -        -        -        -    230 

Prescott  V.  Maxwell,         -        -    708 

V.  Parker,    -        -        -    601,  692 

President,  etc.  v.  Wadleigh,     -    277 

Preston  v.  Leighton,  -        -    784 

V.  Tenney,   -        -        -        -    283 

Prettyman  v.  I3arnard,      -        -    380 

Prevo  V.  Latlirop,       -        -        -    541 

Price  V.  Dearborn,     -        -        -    773 

V.  G.  \V.  Ry,       -        -        -    597 

V.  Green,      -        -        -        -    492 

V.  Lewis,      -        -        -    277,  287 

V.  Reynolds,         -        -        .    272 

V.  Severn,    -        -        -        -    811 

V.  Warren,  -        -        -        -    805 

Prickett  v.  Crook,     -        -        -    724 

Pridgen  v.  Hill,  -        -        .    584 

Priest  V.  Maclean,      -        -        -      70 

V.  Nichols,  -        -      151,  786,  789 

V.  N.  L  &  C.  R.  R.  Co.,      -    109 

V.  Watkins,  -        -        -    389 

Prigdon  v.  Andx'eAvs,         -        -    550 

V.  McLean,  -        -        -        -     666 

Prince  v.  Lamb,        -        -    603,  666 

v.  Lynch,     -        -        -    208,  437 

V.  Moulton,  -        -        -    187 

Prior  v.  Powers,         -        .        -    804 

Pritchard  v.  Hennessy,     -    807,  809 

V.  Long,       -        .        .        .    769 

Pi-itchet  V.  Boevy,     -        -        -     142 

Probate  Court  v.  Bates,    -        -    240 

Proctor  V.  Cooper,     -        -        -    669 

V.  Crozier,    -        -        -        -    760 

V.  Marshall,  -        -        -    413 

Proprietors,  etc.  v.  Newcomb.  -        6 

Proprietors  of  L.  &  C.  v.  Lowell 

Horse  R.  R.  Co.,  135,  137,  143 
Prosser  v.  Jones,  -  -  75,  100 
Pruyn  v.  Milwaukee,  -  -  550 
Pudsey's  Case,  -  -  -  -  385 
Pujol  V,  McKinlay,  -  552,  554,  680 
Pullen  V.  Chase,  -  -  -  619 
Pulliam  V,  Booth,  -  -  -  431 
PuULng  V.  Supei'visors,  -  -  430 
Pullman  P.  C.  Co.  v.  Reed,  -  811 
Pulsifer  v.  Hotchkiss.  -  -  265 
V.  Sliephard,  -  459,  461,  465 
Pumpelly  v.  Plielps.  -  -  130,  159 
Pui'chase  v.  IMatteson,  -  -  375 
Purdy  V.  Phillips,  -  538,  596,  618 
Purlet  V.  Morehead,  -        -    431 

Purple  V.  Norton,  -  .  -  233 
Putnale  v.  Sanders,  -  -  -  451 
Putnam  v.  Lewis,  373,  375,  377,  596 


Pages. 

Putnam  v.  Putnam,  - 

- 

- 

469 

V.  Russell,    - 

. 

399, 

,  403 

Pyke  V.  Clark,  - 

- 

- 

578 

Quaide  v.  Stewart,     - 

, 

. 

423 

Quarles  v.  Quarles,    - 

- 

- 

623 

Queen  v.  Fall,     - 

- 

- 

808 

Quigley  v.  C.  P.  R.  R.  Co., 

733, 

757, 

810 

V.  De  Haas, 

- 

. 

177 

Quimb}'  V.  Carter,     - 

- 

- 

826 

Quin  V.  Keefe, 

- 

- 

632 

V.  Lloj^d, 

- 

- 

333 

V.  Moore,     - 

- 

- 

13 

Quince  v.  Callender, 

- 

- 

642 

Rackley  v.  Pearce,     - 

. 

399, 

409 

Radchffe  v.  Mayor,  etc. 

5   " 

- 

5,  6 

Radway  v.  Briggs,     - 

- 

25 

Railroad  Co.  v.  Finney, 

- 

740, 

755 

V.  Jolmson, 

. 

- 

326 

V.  Smith, 

. 

- 

297 

Railway  Co.  v.  Reeves, 

. 

59, 

118 

Rainey  v.  Jones, 

- 

- 

456 

Rallman  v.  Baker,     - 

. 

- 

619 

Ralph  V.  Brown, 

. 

- 

631 

Ralston  v.  Wood, 

. 

372, 

376 

Ramsdell  v.  Soule,     - 

_ 

- 

374 

Ramsden  v.  Boston,  etc.  R.  R. 

Co.,      - 

. 

- 

750 

Ramsey's  Appeal, 

- 

314, 

315 

Ramsey  v.  McCauley, 

- 

- 

664 

V.  Sargent, 

- 

- 

279 

V.  Warner, 

- 

- 

408 

Rand  v.  White  Mts.  R.  '. 

R.  Co., 

173 

Randall  v.  Hazelton, 

. 

. 

51 

V.  Newton,  - 

- 

- 

134 

V,  Panamore, 

. 

. 

113 

V.  Raper,      -      111, 

131 

,  140, 

194 

V.  Rich, 

- 

. 

372 

Randell  v.  Trimen,     - 

106, 

,  139, 

145 

Randlet  v.  Herron,    - 

_ 

. 

377 

Randolph  v.  Bales,     - 

- 

- 

831 

V.  Bayne,     - 

• 

- 

667 

v.  Metcalf,  - 

. 

- 

829 

V.  Parish,     - 

. 

. 

773 

Ranger  v.  Goodrich, 

- 

- 

231 

Rankin  v.  Barnes, 

. 

- 

298 

V.  Demott,  - 

_ 

. 

330 

V.  Scott, 

- 

- 

310 

Rann  v.  Reynolds,     - 

- 

760, 

833 

Ransom  v.  New  York,  etc.  R.  R. 

Co.,  - 

- 

- 

106 

V.  Thomas,  - 

. 

. 

423 

RapeUe  v.  Emory, 

- 

587, 

628 

Rapelye  v.  Prince,     - 

- 

- 

135 

Raphael  v.  Boehm,    - 

. 

634, 

626 

Rashleigh  v.  Salmon, 

. 

- 

773 

Rathbun  v.  Wheeler, 

- 

. 

674 

Raupman  v.  Evansville, 

,    - 

- 

143 

Rawley  v.  Woodruff, 

- 

- 

277 

Ixviii 


TABLE   OF   CASES   CITED. 


Pages. 

Rawlinson  v.  Clarke,         -    505,  526 

Rawsou  V.  Holland,  -        -        -      61 

V.  Samuel,  -        -        -        -    235 

Rayburn  v.  Day,        -        -    376,  583 

Raj-mond  v.  Baar,     -        -    359,  360 

V.  Barnard,  -        -        -    470 

V.  Beanard,  ...        -    697 

V.  Holmes,  -        -        -        -    635 

V.  Isham.    -        -        -    582,  614 

V.  Traffarn,         -        -        -    761 

Rayner  v.  Kenney,     -        -        -    236 

Raynor  v.  Bryson,     -        -    622,  625 

V.  Nims,       -        -        -    721,  725 

Reab's  Estate,     -        -        -        -    440 

Reab  v.  McAllister,    -     265,  278,  283 

Read  v.  Dupper,         -        -        -    317 

V.  Goldin.i?,  -        -    449,  456 

V.  Spaulding,       -        -        -      59 

Reading  v.  Keppleman,     -        -        5 

Ready  v.  Tuskaloosa,        -        -    253 

Reay  v.  White,  -        -        -        -    430 

Reclitmeyer  v.  Remsen,    -        -        7 

Reckert  v.  Snyder,    -        -        -    765 

Redding  v.  SoVith  C.  R.  R.  Co.,     749 

Redfield  v.  Holland  Ins.  Co.,    -    437 

Redman  v.  Wilson,   -        -        -      33 

Reed  v.  Armstrong,  -        -    351,  781 

V.  Bank  of  Kentucky,        -    772 

V.  Bartlett,  -        -        -        -    370 

V.  Bias.        -        -        -    239,  237 

Y.  Boardman,      -    398,  400,  403 

V,  Fairbank,        _        .        -     169 

V.    Hanover  Branch  R.  R. 

Co., 604 

V.  Hubbard,        -        -    430,  4B3 

V.  Lansdale,         -        -        -     570 

V.  Parsons,  -        -        -        -    389 

V.  Reed,       -        -        -        -    609 

V.  Shaw,      -     220,  224,  440,  443 

V.  Tarbell,    -        -        -        -    443 

V.  Upton,     -        -        -        -    373 

V.  White,     -        -        -        -    438 

V.  Woodman,    448,  468,  473,  474 

Reeder  v.  Purdy,       -        -    237,  721 

Rees  V.  Emrick,         -        -        -    826 

Reese  v.  Hall,    -        -        -    427,  429 

V.  Stearns,  -        -        -        -     337 

Reeser  v.  Parker,       -        -        -    343 

Reeves  v.  Hearne,     -        -        -     433 

V.  Stipp,       -        -        -     501,  581 

Reformed,  etc.  Church  v.  Brown,  184 

Register  v.  Casperson,       -        -    207 

Reggio  V.  Braggiotti,     134,  135,  138, 

145 
Regnier  v.  Cabot,       -        -        -    233 
Reid  V.  Dunklin,        -        -        -    828 
V.  Rensselaer  Glass  Factory,  587 
Reilly  v.  Jones,  -    476,  505,  534 

Reinback  v.  Crabtree,  331,  572,  573 
Reindel  v.  Scheel,  -  -  -  506 
Remke  v.  Clinton,    -        -        -    630 


Pages. 
Remy  v.  Shaw,          _  -  -  5()3 
Rend  v.  Board,  -        -  -  -  615 
Rennell  v.  Kimball,  -  -  693 
Renner  v.  Marshall,  -  -  773 
Rensselaer  Glass  F.  Co.  v.  Reid,  531, 
590,  591,  596 
Respublica  v.  Mitchell,  -  -  599 
Retan  v.  Drew,          -  -  443,  704 
Revis  V.  Smith,          -  -  -  5 
Rew  V.  Barber,  -        -  -  -  371 
Rex    V.    Slieriff   of    Hertford- 
shire,       -        -  -  179,  183 
V.  Simmons,        -  _  -  b04 
V.  Woodfall,        -  -  -  804 
Rexter  v.  Starin,        -  -  -  148 
Reynolds  v.  Bank,     -  -  -  326 
V.  Bridge,     -        -  477,  505,  526 
V.  Chandler  R.  Co.,  -  153,  238 
V.  Cox,         -        -  -  -  277 
V.  Hanrahan,      -  -  -  750 
V.  Lvne,       -        -  -  -  324 
V.  Mardis,    -        -  -  -  589 
V.  McFarlane,      -  -  -  399 
V.  Shuler,     -        -  -  -  239 
V.  Tucker,    -        -  -  -  235 
V.  Walker,  -        -  -  -  623 
Rhinelander  v.  Barron,  -  -  7 
Rhoads  v.  Booth,      -  -  209,  211 
V.  Woods,    -        -  -  -  210 
Rhodes  v.  Baird,       -  74,  83,  113 
V.  Bunch,    -        -  -  238,  230 
V.  Ijams,      -        -  -  -  234 
Rice  V.  Austin,          -  -  -  143 
V.  Coolidge,         -  -  -  763 
V.  Goddard,         -  -  -  290 
V.  Hollenbeck,     -  -  -  164 
V.  Lord,       .        _  -  -  435 
V.  Manley,  -        -  -  -  796 
V.  Stone,      -        -  -  -  7 
V.  Webster,         -  -  -  437 
V.  Woods,    -        -  -  -  434 
Rich  V.  Johnson,        -  -  -  594 
V.  Rich,        -        -  -  -  761 
Richard  v.  Parrett,  -  -  -  615 
Richards  v.  Edick,    -  -  -  490 
V.  Globe  Bank,    -  -  -  645 
V.  IMarshman,      -  556,  568,  571 
V.  McPherson,     -  -  -  549 
Richardson  v.  Ainsworth,  -  388 
V.  Boston,  etc,  Co.,  -  -  461 
V.  Brown,    -        -  -  -  570 
V,  Chasen,    -        -  -  -  765 
V.  Cliynoweth,    -  -  -  83 
V.  Cooper,    -        -  -  -  432 
V.  Dunn,       -        -  -  69,  140 
V.  Jackson,           -  -  459,  461 
V.  Mellish,    -        -  -  -  196 
V,  Northrop,        -  -  231,  795 
V,  Northrup,        -  -  -  194 
V,  Spencer,  -        -  -  -  251 
V.  Washington  Bank,  -  401 


TABLE   OF   CASES   CITED. 


Ixjy 


Pages. 

Pages. 

Hichardson  v.  Williams, 

- 

064 

Robertson  v.  Knapp, 

- 

- 

801 

V.  Woehler, 

. 

- 

511 

V.  Morgan,  - 

. 

135, 

136 

V.  Wcwdbviiy, 

. 

399, 

403 

V.  Keed, 

. 

- 

204 

Richmond  v.  Bronsou, 

- 

- 

629 

V.  Smith, 

- 

- 

437 

V.  Collanier, 

. 

- 

677 

Robeson  v.  Whitesides, 

- 

478, 

521 

V.  D.  &  S.  etc.  Co., 

118. 

121, 

123, 

Robbins  v.  Borman, 

. 

- 

209 

131,  176, 

105, 

,  196, 

617 

V.  Chicago, 

- 

- 

134 

Richmond  Iron  Works 

V.  Wood- 

v.  Lincoln,  - 

- 

- 

406 

rulf,      - 

- 

- 

404 

Robinett  v.  Morris,    - 

- 

- 

761 

Richmond    T.    Co.    v. 

Vander- 

Robins  v.  Lister, 

. 

- 

291 

bilt,      - 

- 

749, 

752 

Robinson  v.  Allison, 

408, 

,419, 

420 

Ricker  v.  Blauchard, 

. 

- 

468 

V.  Bakewell, 

- 

- 

478 

Rickert  v.  Snyder,     - 

- 

- 

140 

V.  Barrows, 

- 

. 

629 

Ricketson  v.  Wright, 

- 

- 

630 

V.  Barton,    - 

. 

_ 

721 

Ricketts  v.  Hall, 

. 

428, 

430 

V.  Bland,    187,  199, 

538, 

588, 

596, 

Riddle  v.  Cheadle,     - 

- 

- 

142 

631, 

632, 

663, 

710 

V.  Driver,     - 

_ 

165, 

169 

V.  Brock,      - 

. 

. 

531 

Riddlesbarger  v.  McDaniel, 

- 

328 

V.  Cathcart, 

- 

. 

490 

Rider  v.  Kelley, 

- 

- 

173 

V.  Cook, 

. 

- 

453 

V.  Pond, 

. 

- 

709 

V.    Com    Exchange  & 

Ins. 

V.  Townsend, 

- 

- 

461 

Co.,  -        -        - 

- 

- 

622 

Ridge  V.  Wilson, 

- 

- 

824 

V.  Cropsey, 

- 

- 

477 

Riding  v.  Smith, 

- 

- 

67 

V.  Doolittle, 

399, 

,  405, 

,  413 

Ridington  v.  Chase,  - 

. 

. 

472 

V.  Drummond,    - 

- 

- 

233 

Rigby  V.  Hewitt, 

- 

- 

70 

V.  Ferreday, 

- 

- 

460 

Rigdon  V.  Walcott,    - 

- 

- 

233 

V.  Fhnt, 

. 

. 

769 

Rigg  V.  Cook,     - 

- 

- 

806 

V.  Gaines,     - 

. 

468, 

471 

Righter  v.  Stall,        417, 

,419 

,421, 

422 

V.  Godfrey, 

- 

- 

220 

Riggins  V.  Brown, 

- 

- 

803 

V.  Hall, 

. 

- 

342 

Riley  v.  Kershaw, 

427, 

,  429. 

430 

V.  Harmon, 

- 

. 

17 

Rilling  V.  Thompson, 

- 

- 

549 

V.  Holt, 

- 

. 

163 

Ringgold  V.  Randolph, 

- 

- 

832 

t  V.  Hurlburt, 

- 

- 

347 

V.  Ringgold, 

- 

- 

163 

V.  Int.  Life  Ass.  So. 

,,  - 

- 

399 

Ripka  V.  Sargent, 

- 

- 

9 

V.  Kenny,    - 

- 

493, 

549 

Ripon  V.  Bittel, 

. 

. 

159 

V.  Loomis,   - 

. 

- 

494 

Rippey  v.  Miller, 

- 

- 

758 

V.  Mann, 

- 

- 

280 

Riseley  v.  Squire, 

- 

- 

186 

V.  Scull, 

. 

. 

206 

Rising  V.  Patterson,  - 

. 

. 

432 

V.  Weeks,     - 

. 

_ 

8 

Ritter  v.  Phillips,       - 

- 

- 

543 

V.  Wicks, 

- 

- 

388 

Rivers  v.  Griffith, 

. 

465, 

466 

Robison  v.  Rupert,     - 

- 

229, 

230 

Rix  V.  Smitli, 

. 

. 

592 

Robson  V.  McKoin,    - 

. 

399, 

403 

Roach  V.  Jelks,  - 

_ 

. 

622 

V.  Watts,      - 

. 

- 

373 

Roan  V.  Drimimond, 

. 

- 

600 

Rochester  v.  Anderson, 

227, 

229, 

230, 

Roberts'  Appeal, 

- 

- 

622 

826 

Roberts  v.  Carter, 

- 

316, 

317 

V.  Chester,  - 

- 

. 

803 

V.  Dunn, 

. 

798, 

802 

Rochester  &  Syracuse  R.  R, 

.Co. 

v.  Failis, 

- 

- 

804 

V.  Budlong, 

_ 

- 

787 

V.  Fisher,     - 

- 

365, 

370 

Rockefeller  v.  Donnelly,  - 

134, 

808 

V.  Gallagher, 

_ 

- 

382 

Rockford,    etc.    R.    R. 

Co 

.     V. 

V.  Graham, 

- 

. 

763 

Beckenerer, 

- 

. 

111 

V.  Lambert, 

- 

- 

701 

Rockingham  v.  Bosher, 

- 

. 

56 

V.  Laudram, 

- 

- 

828 

Rockwell  V.  Daniels, 

. 

. 

275 

V.  Mason,     - 

73, 

,739, 

743 

Rockwood  V.  AUen,  - 

- 

. 

17 

V.  McNeely, 

- 

- 

632 

Rodes  V.  Barnes, 

- 

- 

371 

V.  Prior, 

. 

- 

610 

Rodgers  v.  Ferguson, 

. 

- 

758 

V.  Rofkbottom  Co., 

- 

- 

807 

V.  Fletcher, 

. 

_ 

794 

V.  Thompson, 

- 

- 

378 

Roe  V.  Birkenhead,  etc 

;.  R. 

R. 

V.  Tremayne, 

. 

493, 

576 

Co.,      - 

- 

- 

750 

V.  Wilkinson, 

. 

347, 

354 

Rogers  v.  Ackerman, 

. 

786, 

801 

Robertson  v.  Gallagher, 

,     - 

- 

380 

V.  Atkinson, 

. 

. 

433 

V.  Gentry,   - 

- 

- 

14 

V.  Beard,     - 

- 

- 

109 

Ixx 


TABLE   OF   CASES   CITED. 


Pages. 

Rogers  v.  Bemas, 

-      83 

V.  Colt, 

-     618 

V.  Heniy,     - 

-    743 

V.  Humijiirey, 

-    279,  283 

V.  Lee  Co.,  - 

-    684 

V.  Ostram,  -    279,  285,  286,  297 

T.  Rathbun,         .        _  -  563 

V.  Rutter,     -        -        -  -  468 

V.  Sainj)le,  -        -        -  493,  576 

V.  West,       -        -        -  -  617 

Roget  V.  Clapp,          .        .  -  375 

Rohan  v.  Hanson,     -        -  404,  408 

Roland  v,  Martindale,       -  -  633 

Rolf  V.  Peterson,       -        -  -  489 

Rolin  V.  Stewart,       -        -  -  139 

Rollin  V.  Stewart,     -        -  -  497 

Rome  V.  Oniberg,      -        -  -  5 

Ronlan  v.  Nichols,    -        -  -  297 

Rontan  v.  Nicliols,    -        -  -  277 

Rood  V.  New  York,  etc.  R.  R. 

Co.,      -----  5 

Roosevelt  v.  Bull's  Head  Bank,  459, 

462,  465,  466 

Root  V.  Bonerema,    -        -  -  164 

V.  Chandler,        -        -  -  213 

V.  Collins,    -        -        -  303,  305 

V.  King,       -        -        -  -  233 

V.  Post,         -        -        -  -  397 

V.  Sherwood,       -        -  806,  809 

Rootes  V.  Stone,        -        -  .  630 

Roper  V.  Johnson,     -    148,  176,  196 

Rose  V.  Beattie,         -      73,  158,  *60 

V.  Bridgeport,     -        -  679,  684 

V.  Brown,    -        -        -  444,  446  ' 

V.  Duncan,  -        -    459,  461,  462 

V.  Lewis,      -        -        -  -  383 

V.  Miles,       -        -        -  -  6 

V,  Post,        -        -        -  -  141 

V.  Rose,        -        -        -  -  354 

Rosenbaum  v,  McThomas,  -  815 

Rosevelt  v.  New  York  &  H.  R. 

R.  Co.,         -        -        -  468,  469 

Ross  V.  Austin,           .        -  .  695 

V.  Hicks,      -        -        -  -  316 

V.  Longniuir,       -        -  _  293 

V.  McLauchlan,  -        -  -  433 

V.  Milne,      -        -        -  -  204 

V,  Ross,        -        -        -  -  811 

V,  Russell,    -        -        -  -  687 

V.  Weber,    -        -        -  -  175 

V.  Wh:irton,         -        -  -  358 

Rosser  v.  Deprist,      .        -  -  G38 

Rosseau  v.  Call,         -        -  399,  413 

Roth  V.  Smitli,  -        -        -  -  231 

V.  Wells,      -        -        -  -  163 

Rothschild  v.  Currie,        -  634,  636 

Round Ictt  V.  Herron,         -  -  375 

V.  Small,      -        -        -  -  404 

Rounds  V.  Delaware,  etc.  R.  R. 

Co., 749 

Rouneberg  v.  Falkland  I.  Co.,  140 


Pages. 

Rowan  v.  Lee,    -        -  -  -    763 

V.  People,    -        -  -  -    814 

V.  Rowan,    -        -  -  -    207 

Rowand  v.  Billinger,  -  -     763 

Rowland  v.  Shelton,  -  134,  614 

Rowe  V.  Young,         -  .  -    459 

Rowley  v.  Ball,          -  -  -    463 

V.  "Stoddard,      220,  436,  439,  441 

V.  Woodruff,       -  -  -    278 

Rowning  v.  Goodchild,  -  -       30 

Roy  V.  Baucars,         -  -  -    388 

V.  Clemens,          _  -  -     134 

V.  Duke  of  Beaufort,  508,  535 

Royal  V.  Miller,          -  -  -    596 

V.  Rich,        -        -  -  -    465 

Royale  v.  McKenzie,  -  -    803 

Royalton  v.  R.  &  W.  Turnpike 

Co.,      -        -        -  -  202,  764 

Royce  v.  Edwards,    -  -  -    633 

Royse  v.  May,    -        -  -  770,  826 

Rozet  V.  McClelland,  -  -    349 

Ruble  V.  McDonald,  -  -  -    804 

V.  Murray,  -        -  -  469,  474 

V.  Norman,           _  _  -    404 

V.  Turner,    -        -  -  436,  439 

Rucker  v.  Neeley,      -  -  -    769 

Ruckman  v.  Pitcher,  -  615,  623 

Ruddell  V.  Ambler,  -  -  -    563 

Rudder  v.  Price,        -  -  179,  184 

Rudgley  v.  Smalley,  -  -    403 

Rudolph  V.  Wagner,  -  468,  708 

Ruff  V.  Rinaldo,        -  -  -    765 

Ruggles  V.  Keeler,     -  -  -    633 

V.  Patten,    -        -  -  -    441 

Run  dell  v.  Herren,    -  -  -    370 

Rundle  v.  Moore,       -  -  7,  131 

Runlett  V.  Bell,           -  -  -      13 

Runnells  v.  Bullen,  -  -  -        6 

Rungon  v.  Bordine,  -  -  -        6 

V.  Latham,          .  .  -    403 

Rushton  V.  Rowe,      -  -  693,  693 

Russ  V.  Steamboat  War  Eagle,     198 

Russell  V.  Barrow,     -  -  -    344 

V.  Brown,    -        -  -  -    199 

V.  Butterfield,     -  -  -    210 

V.  Carne,     -        -  -  -    769 

V.  Conway,          -  -  316,  317 

V.  Dennison,        -  -  -    818 

V.  Hester,    -        -  -  -    383 

V.  Hubbard,         -  -  -    814 

V.  La  Roque,       -  -  379,  381 

V.  Lucas,      -        -  -  -    687 

V.  Lytle,      -        -  -  438,  432 

V.  Mayor  of  New  Yoi'k,     -        5 

V.  Palmer,  -        -  -  -    246 

V.  Roberts,  -        -  -  -    491 

V.  Shepherd,        -  -  603,  664 

V.  Shuster,  -        -  -  .    357 

V.  Tomlinson,      -  -  .    215 

V.  Turner,    -        -  -  _    246 

Ruthmaur  v.  Beckwith,    -  -    430 


TABLE   OF   CASES    CITED. 


Ixxi 


Rutledge  v.  Smith,    - 
Rj'an  V.  Baklrick, 
Ryder  v.  Hathaway. 
Eyerson  v.  Cliapiuau, 

V.  Marseilles, 


140, 


Pages. 

-  593 

-  612 
163,  164 
141,  143, 

144 

-  763 


227, 
etc. 


Saam  v.  Saam,  -  -  -  - 
Sackrider  v.  Beers,  -  -  - 
Sacrest  v.  Joues,  -  -  - 
SaJford  v.  Stevens,  -  -  - 
Sager  v.  Wai'ley,  -  -  - 
Sainter  v.  Ferguson,  478,  492,  505, 
Sabbrell  v.  Day,  .        .        - 

Salem  India  R.  Co.  v.  Adams, 
Sallee  v.  Meugg,        -        -        - 
.Sally  V.  Forbes,  -        -        - 

Salter  v.  Parkhurst,  - 
Salters  v.  Kipp, 
Saltmarsh     v.     Planters', 

Bank,  -        -        -        - 
Saltus  V.  Everett, 

V.  Ralph,  ...  - 
Sampson  v.  Henry,  -  -  - 
Samson  v.  Rose,  .  -  - 
Samuel  v.  Minter,  -  -  - 
Samuels  v.  Evening  Mail  Asso. 

V.  King,       _        -        -    359, 
Sanborn  v.  Benedict, 

V.  Emerson,  .        -        - 

Sandback  v.  Thomas, 
Sanders  v.  Branch  Bank 

V.  Frost, 

v.  Jolinson, 

V.  Sccjtt,       -        -        -        - 

V.  Stuart,     -        -        -        - 
Sandford  v.  Buckley,      460,  461, 
Sands  v.  Lyon,  -      444,  455,  450, 

V.  Smitli,      -        -        -        - 
Sanford  v.  Clark,       -     225,  403, 
Sanger  v.  Fencher,    -        -        - 
Sangster  v.  Commonvsrealtb,     - 
Sapsford  v.  Fletcher, 
Sarah  Ann,  The, 
Sard  v.  Rhodes, 
Sargent  v.  Graham, 

V.  Kellogg,  - 

V.  State, 
Sassean  v.  Clark, 
Sasser  v.  State,  .        .        - 

Satchwell  v.  Williams,   121,  279, 
Satterlee  v.  Matteson, 
Saunders  v.  Frost,     -        -    444, 

v.  Graham,  .        .        . 

V.  McCarthy, 
Sauntry  v.  Dunlop.    -        -        - 
Savage  v.  Everman,  -    426, 

Savannah,   etc.  Canal  [v.  Bour- 

quin,  ----- 
Savannah,   etc.    R.    R.    Co.    v. 

Callahan,     -        -        -        - 


429, 
453, 
234, 


-  372, 
455,  456, 

-  806, 


240 

198 
816 
830 
423 
526 
805 
299 
589 
442 
614 
260 

508 
471 
490 
769 
163 
604 
750 
360 
108 
812 
142 
431 
463 
236 
631 

84 
463 
458 
643 
420 
280 
193 
255 
8 
433 
457 
291 
807 

70 
806 
297 
674 
703 
447 
533 
389 
433 

199 

518 


Pages. 

Saver  v.  O'Reilly, 

- 

- 

465 

Savercool  v.  Farwell, 

. 

- 

796 

Saward  v.  Palmer,     - 

- 

- 

345 

Sawyer  v.  Eifert, 

- 

- 

234 

V.  Keene,     - 

- 

- 

191 

v.  Lauer, 

- 

- 

721 

V,  Merrill,    - 

- 

- 

164 

V.  Steele, 

. 

- 

204 

V.  Wiswell, 

- 

274, 

377 

Savior  V.  Daniels, 

- 

- 

573 

Say  re  v.  Austin, 

- 

- 

600 

V,  Jewett,    - 

. 

- 

830 

V.  Wisner,    - 

. 

- 

670 

Scanland  v.  Houston, 

- 

- 

687 

Scarf  V.  Morgan, 

. 

- 

471 

Scantlin  v.  Allison,   - 

- 

290, 

291 

Schaeffer  v.  Marienthal, 

,   - 

- 

211 

Schaffer  v.  Lee, 

. 

177, 

187 

Schaick  v.  Edwards, 

. 

- 

633 

Schanler  v.  Porter,    - 

- 

- 

804 

Schell  V.  Plumb,      176, 

187, 

,  196, 

,  203 

Schermerhorn  v.  Andei 

•son. 

,     - 

225 

V.  Loiues,     - 

- 

- 

875 

V.  Tolman,  - 

- 

- 

562 

Scheumert  v.  Koehler, 

- 

- 

287 

SchieffeUn  v.  Stewart,  ( 

324, 

626, 

679. 

Schile  V.  Brookhahus,       -  -    121 

Schmertz  v.  Dwyer,           -  -     174 

Schmidt  v.  Limehouse,     -  616,  619 

Schuaderbeck  v.  Worth,  -  -    287 
Schneider  v.  Hosier, 

V.  Seely,      -        .        -  - 

Schofield  V.  Ferrers,          -  766, 
Scholes  V.  N.  London  R'y  Co., 


Schoole  V.  Noble, 
Schryser  v.  Teller,     - 
Schubert  v.  Hastean, 
Schulenburg  v.  Harriman, 
Schuei-in  v.  McKie,    - 
Schwinger  v.  Raymond,  - 
Scofield  V.  Day, 

V.  Tomkins, 
Scott  V.  Beavan, 

V.  Boston,  etc.  Co.,     - 

V.  Bryson,    -        -        - 

V.  Cleveland, 

V.  Dublin,  etc.  Ry  Co., 

V.  Elmendorf, 


723 
763 
767 
42. 
64,  70 

-  317 

-  303 

-  293 

-  163 

-  629 

-  151 
343,  633 
481,  504 

-  343 


Fisher, 
V.  Hunter,  - 
V.  Kenton,  - 
V.  Peebles,  - 
V.  Ray, 
V.  Renton,  - 
V.  Rogers,  - 
V.  Sliepherd, 
V.  Tyler, 


398,  399,  40: 


-    87S 


100 

721 

421 

39 

318 

421 

27 

47 

823 

411 

-■  287 

83,  131,  174 

43,  65 

-    135 


V.  Uxbridge  &  R.  R'y  Co.,      460 
Scoville  V.  Canfield,  -        -        -    658 


Ixxii 


TABLE   OF    CASES   CITED. 


Screpps  V.  Riley, 
Scroggs  V.  Cunningham, 


Scruggs  V.  Gass, 

V.  Luster,     - 

Scuchmau  v.  Knoebel, 

Scudder  v,  Morris,    - 

Seaman  v.  Feeney,   -        -        -      73 

V.  Haskins,  -        -        .    433 

V.  Luce,       -        -        -        -    210 

Searle  v.  Adams,       -        -        -    549 

V.  Barrett,   -        -        -        -    443 

Searles  v.  Sa<Igrave,         -        -    455 

Sears  v.  Conover,      -        -        -        7 

V.  Dewing,  -        -        -        -    331 

V.  Lyons,     -        .        -        -    781 

V.  Wingate,  -        -        -    281 

Seat  V.  Moreland,      -        -        -      13 

Seaver  v.  Morse,        -        -        -    283 

Seavy  v.  Dearborn,    -        -        -    163 

Seawell  v.  Henry,     -        -    447,  454 

Secklemore  v.  Thistleton,         -    821 

Secor  V.  Sturges,      178,  183,  184,  185 

Seeley  v.  Bishop,        -        -        -        6 

Seger  v.  Barkliampsted,    -        -    159 

Selden  v.  James,        -        ,       -    593 

V.  Preston,  -        -        -        -    696 

Selfridge  v.  Northampton  Bank,  399, 

403 
Sellar  v.  Clelland,  -  -  -  796 
Selleck  v.  Sugar  Hollow  T.  Co.,  399, 

413 
Sellers  v.  Jones,  -  .  -  383 
Seltzer  v.  Coleman,  -  -  -  373 
Semmes  v.  Boykin,  -  -  -  403 
Seneca  Road  Co.   v.   Auburn, 

etc.  R.  R.  Co.,     -        -  14,  15,  16 

Senter  v.  Bowman,  -        -        -    633 

Seale  v.  Norton,         ...    378 

Severingham  v.  State,      -        -    608 

Sevett  V.  Doge,  -        -        -    633 

Sewall  V.  Sparrow,  230,  234,  440,  441 

Sewall's  Falls  Bridge  v.  Fish,  -    131 

Sewell's  Case,     -        -        -        -    600 

Sexton  V.  Murdock,  -        -        -    578 

Seymour  v.  Greenwood,  -        -    750 

V.  Le^^^s,      -        -        -        -    353 

V.  Marvin,   -        -        -    398,  399 

V.  Minturn,  436,  438,  433,  434,  443 

V.  Sexton,    -        -    411,  414,  419 

V.  Van  Slyck,      -        -    401,  413 

Shackford  v.  Goodwin,     -        -    346 

Shackleford  v.  Helm,        -        -    694 

Shafer  v.  Wilson,      -        -        -    131 

Shaffer  v.  Lee,  -        -        -        -    303 

Shallenberger  v,  Brinton,         -    338 

Shanklin  v.  Cooper,  -        -    635,  636 

Shannon  v.  JIarselis,         -        -    303 

Shant  V.  Southern,    -        -        -    470 

Sharon  v.  Mosher,     ...    163 

Sharp  V.  Powell,        ...      43 

V.  Spockenagle,  -        -        -    440 


Pages. 

Pages. 

724,  737,  746 

Shi 

iw  V.  Berry,  - 

- 

-      70' 

-    618 

V.  Brown,     - 

. 

-    731 

-    864,  367 

V.  Cliarlestown,  - 

- 

-    798 

-     339 

V.  Clark, 

. 

-     353 

-    390 

V.  Etheridge, 

- 

-     199 

-    616 

V.  Gookiu,   - 

- 

-    379 

V.  Hoffman,         -        -    763,  764 

V.  Holland,  -        -        -     173 

V.  Picton,     -      398,  399,  413,  598 

V.  Pratt,       -        -        -        -    439 

V.  Russell,   -        -        -        -    465 

V.  Sears,       -        -        -    459,  461 

V.  Turnpike  Co.,  -        -    177 

Sheahan  v.  Barry,     -        -        -    736 

Shed  V.  Britt,     -        -        -        -    447 

V.  Pierce,  -  -     224,  440,  441 

Shedel  v.  Wilson,       -        -        -    419 

Sheeby  v.  ]\Iandevill,         -        -    373 

Sheehan  v.  Collins,    -        -        -    234 

V.  Dalrvmple,      -        -    320,  333 

Sheehy  v.  Mandeville,      -    428,  618 

Sheen  v.  Rickie,         -        -    820,  821 

Shelbyville  L.  B.  R.  R.   Co.  v. 

Lewark,       -        -        -        -      24 

Sheldon  v.  Kibbe,      -        -        -    350 

V.  Mickel,    -        -        -    571,  575 

V.  Steere,     -        -        -        -    568 

Shell  V.  Sanders,        -        -        -    816 

Shelton  v.  Gill,  -        -     403,  494,  563 

Shemet  v.  Givan,       -        -        -    618 

Shepard  v.  Merrill,    -        -        -    233 

V.  M.  G.  L.  Co.,  -        83,  131,  130 

V.Pratt,       -        -        -        -     770 

Shepherd  v.  McQuilkin,    -        -    639 

V.  Wilhs,     ...        -     795 

v.  Wysing,  -        -        -        -    469 

Sheppard  v.  Taylor,  -        -        -    696- 

Sheridan  v.  Brooklyn,  etc.  R.  R. 

Co., 64 

V.  Mann,      -        .        -        -    831 

V.  Smith,     -        -        -    468,  469 

Sheridine  v.  Gaul,     -        -        -    455 

Sherley  v.  Billings,    -        -        -    758 

Sherlock  v.  Alhug,    -        -        -    343 

Sherman  v.  Ballou,  -        -        -    435 

V.  Blodgett,         -        -        -    803 

V.  Dutch,     -        -        -    731,  734 

V.  Fall  River  Iron  W.  Co.,    210, 

OAK 

V.  Gassett,  -        -        -  661,  663 

V.Milwaukee,  etc.  R.R.  Co.,  199 

Sherred  v.  Cisco,       -        -  -    590 

Sherrill  v.  Hopkins,  -        -  -    633 

Sherry  v.  Frecking,  -    811.  814,  820 

V.  Schuyler,         -        -  -    243 

Sherwood  v.  Campbell,     -  -    396 

V.  Gibson,    -        -        -  -    815 

V.  Haight,    ...  -    403 

V.  Titman,  -        -        -  -    854 

Shiel  V.  Davies,          -        -  367,  381 

Shiell  v.  McNitt,       -       -  489,  538- 


TABLE    OF    CASES    CITED. 


Ixxiii 


Pages. 
Shiflet  V.  Orange  Humane  So- 

cietv, 269 

Shilling" V.  Carson,     -        -        -    234 

Shiner  v.  Bodine,       -        -        -     177 

V.  Maran,     -        -        -        -     159 

Sh  inker  v.  First  Nat.  Bank,     -    348 

Ship  V.  Nathaniel,      -        -        -    281 

Shipley  v.  Hammond,       -        -     597 

Shipman  v.  Miller,    -        -    589,  628 

V.  State,       -        -        -    280,  615 

Shipp  V.  Stacker,       -        ••    448,  455 

Ship  Pack,  Barker,  Master,      -    683 

Shirley  v.  Jacobs,      -        •    260,  394 

V.  Keathy,  -        -        -        -    232 

V.  Landram,        -        -        -    827 

V.  Spencer,  -        -    495,  563 

Shobes  V.  Carr,  -        -        -    608 

Shockey  v.  Glasford,        -        -    603 

Shont  v.  Southern,    -        -        -    697 

Short  v/Kalloway,    -        -        -    141 

V.  McCartv,  -        -        -     196 

V.  Skipworth,      -        -    128,  630 

V.  Trabue,    -        -        -     632,  635 

Shortle  v.  Minneapolis,     -        -    810 

Shotwell  V.  Denman,         -        -    704 

Shreve  v.  Brereton.  -    489,  504,  521 

Shrewsburg  v.  Bawtlitz,  -        -     826 

Shubut  V.  St.  Paul,  etc.  R.  R.  Co. ,      6 

Shuck  V.  Wight,     493,  494,  5&8,  576, 

577,  579 
Shumaker  v.  Nichols,  -  -  472 
Shumway  v,  Rvitter,  -  -  164 
Shunk  V.  Freedley's  Appeal,  -  309 
Shute  V.  Taylor,  277,  490,  525,  528 
Shutto  V.  N.  P.  I.  Co.,  -  -  6 
Sibert  v.  Kelly,  -        -        -    829 

Sibley  v.  Aldrich,      -        -        -      70 
V.  Rider,      -        -        -    176,  187 
Sibree  v.  Trippe,     372,  426,  427,  428, 

430 

Sigler  V.  Interest,      -        -        -    207 

Sikes  V.  Wild.    -        -        -     130,  160 

SUsbury  v.  McCoon,     165,  166,  167, 

168,  169,  171 

Simmons  v.  Brown,  -        -      96,  123 

V.  Carvill,    -        -        -        -    799 

V.  Cates,      -        -        -        -    409 

V.  Catreer,  -        -        -        -    277 

Simms  v.  Clark,         -        -        -     363 

V.  Walter,    -        -        -    589,  621 

Simons  v.  Clark,        -        -        _    376 

V.  Moiner,    -        -        -        -    795 

Simonsou  v.  Blake,   -        -        -    760 

Simpkins  v.  Low,     829,  338,  786,  801 

Simpson  x.  Clark,      -        -        -    245 

V.  Eogington,      -        -     884,  387 

V.  Feitz,        -        -        -        -    628 

V.  Hall,         -        -        -        -    672 

V.  Keokuk,  -        -        -    148 

V.  London,  etc.  R'y  Co.,      85,  89 

V.  Mackvvood,      -        -        -    767 


Pages. 

Simpson  v.  Pitman,  -        -        -    810 

Sims  V.  Gourelock,     -        -        -    589 

v.  Willing,  -        .        -        -    588 

Sinison  v.  Hart,  -        -    311,  316 

Sinclair  v.  Bowles,     -        .        -    245 

V.  Tallmadge,      -        -        -    160 

Singer  v.  Farnsworth,       -        -     109 

Singer  Manuf.  Co.  v.  Holdfoot,    757 

Single  V.  Barnard,     -        -        -     163 

V.  Schneider,       -        -    167,  168 

Singleton  v.  Eastern  R'y  Co.,  -      64 

V.  Lewis,      -        -      550,  681,  685 

V.  Singleton,        -        -        -    622 

V.  Williamson,     -        -        -      70 

Sisson  V.  Cleveland,  etc.  R.   R. 

Co.,      -        -      100,  131,  786,  796 

Siter  V.  Price,     -        -        -        -    461 

Skarfe  v.  Jackson,     -        -        -    427 

Skelton  v.  Loudon,  etc.  R'y  Co.,     70 

Skiel  V.  Spraker,        ...    303 

Skinner  v.  Tinker,     ...     132 

Skipweth  v.  Clmch,  -        .        -    607 

Skipwith  V.  Morton,  -        -    396 

Slacam  v.  Pomeroy,  -     632,  635,  636 

Slack  V.  McLagan,     ...    285 

Slater  v.  Sherman,     ...     721 

Slawson  v.  Beadle,     -        -    477,  506 

Slayback  v.  Jones,  277,  281,  282,  287 

Slaytou  V.  Smith,       .        .         -    822 

Slight  V.  Rhineland,  -        -    465 

Slingerland  v.  Morse,        -    455,  456 

V.  Swart,      -        -        -        -    628 

Sloan  V.  Petrie,  -     448,  456,  468 

Slocomb  V.  Larty,      -        -    374,  377 

Slosson  V.  Davis,        ...     347 

Slow  V.  Yarrwood,     ...    280 

Slowman  v.  Walter,  ...    473 

Slugleman  v.  Jeffries,        -        -    278 

Smaller  v.  Union  Canal  Co.,     -    399 

SmaUey  v.  Kerfoot,  ...    769 

V.  Smalley,  -        -        -        .    721 

Smart  v.  McKay,       ...    534 

Smead  v.  Green,         ...    403 

V.  Mead,       -        -        .        -     631 

Smeed  v.  Foord,      85,  100.  102.  106, 

155,  238,  764 

Smetz  V.  Kennedy,    ...    589 

Smiley  v.  Smiley,      ...    440 

Smith  V.  Applegate,         -    374,  406 

V.  Ballow,    -        .        .        -    427 

V.  Bartholomew,         -    427,  439 

V.  Berrv,      -        -        -        -     132 

V.  Bromley,         -        -    403,  428 

v.  Brooks,    ....    423 

V.  Buclianan,       ...     632 

V.  Chatham,         -        .     804,  805 

V.  Chicago,  etc.  R.  R.  Co.,     130. 

151,  194 

V.  Cleveland,       -        -        -    820 

V.  Compton,         -     135,  136,  143 

v.  Conder,   ....    164 


Ixxiv 


TABLE   OF   CASES    CriED. 


Pages. 

Smith  V.  Condiy, 

. 

70,  96 

V.  Coopers,  - 

- 

562,  575 

V.  Dakes, 

- 

-    812 

V.  Dickerson, 

- 

-    489 

V.  Dobsou,   - 

- 

-      70 

V.  Flanders, 

. 

-    692 

V.  Frauklin, 

. 

-    206 

V.  Gagerty,  - 

. 

-      13 

V.  Gowder,  - 

_ 

165,  169 

V.  Green, 

. 

85,  134 

V.  Griffith,  - 

. 

795,  797 

V.  Hawkins, 

. 

-     822 

V.  Hill, 

- 

-     786 

V.  Holcomb, 

. 

159,  732 

V.  Howell,   - 

- 

140,  191 

V.  Hurd, 

. 

55,  56 

V.  Johnson, 

. 

589,  817 

V.  Jones, 

-    175, 

179,  375 

V.  Keels, 

- 

447,  454 

V.  Latour,    - 

_ 

-    820 

V.  Lloyd, 

-    415, 

419,  420 

V.  Lockwood, 

- 

-    375 

V.  Lowden. 

- 

-    317 

V.  London  &  S.  W.  R'y  Co.,  41,  43 
V.  Lumpton,  -  -  -  624 
V.  Macon,  -  -  -  -  422 
V.  Mapleback,  -  -  224,  441 
V.  Mastier,  -  -  -  -  254 
V.  McKinuey,  -    332,  333 

V.  Miller,  -  -  374,  375,  377 
V.  Monteith,  -  -  -  429 
V.  Nettles,  -  -  -  -  417 
V.  New  York,  etc.  R.  R.  Co.,  8 
V.  Overly,  -  -  -  -  159 
V.  Owens,  -  -  870,  375,  377 
V.  Robinson,  .  -  -  572 
V.  Rockwell,  -  -  -  462 
V.  Rogers,  -  -  -  -  378 
V.  Sanborn,  -        -        .    164 

V.  Severance,  -  398,  406,  407 
V.  Shaffer,  -  -  -  614,  616 
V.  Shaw,  -  -  -  .  342 
V.  Sherman,  -  -  -  133 
V.  Sherwood,  -  -  -  731 
V,  Smith,  45,  449,  625,  632,  770 
V.  Stoddard,  -  -  573,  574 
V.  Thompson,  -  -  131,  160 
V.  Todd,  -  -  600,  603,  713 
V.  Tucker,  -  -  -  -  818 
V.  Union  Bank  of  George- 
town, ....  425 
T.  Velie,  -  -  -  -  618 
V.  Walker,  ....  335 
V.  Webster,  -         -         -     750 

V.  Weed  Sewing  M.  Co.,  -  815 
V.  Whitaker,  493,  494,  561,  580 
V.  Whiting,  -  10,  13,  301 
V.  Wood,  -  -  402,  403,  423 
V.  Wundcrlich,  -  121,  724,  744 
Smithers  v.  Harrison,  -  258,  393 
V.  Hooper,  -       -       -       -    628 


Pctcies. 
Smithwick  v.  Ward,  -  -  743 
Smyser  v.  Smyser,  .  -  -  609 
Snaith  v.  Mingay,  -  -  -  633 
Sneed  v.  Wiester,  .  -  -  410 
Sneesby  v.  Lane.  etc.  R'y  Co.,  39,  41, 

42,  70 

Snell  V.  Bangor  Bank,      -        -    806 

V.  Cottingham,     -    91,  110,  399 

Snelling  v.  McDonald,        24,  61,  66 

Snively  v.  Fahnstock,       -      72,  770 

Snow  v.  Boston,  etc.  R.  R.  Co.,    798 

V.  Carpenter,       ...    742 

V.  Chandler,        -        -  441 

V.  Grace,      -        -        -    760,  761 

V.  Nowlin,   -        -        -        -    630 

V.  Perry,      ...    447,  454 

V.  Ware,       -        -        -        -     160 

Snyder  v.  Andrews,  -        -        -    232 

V.  Griswold,         -        -        -    572 

V.  Penn.  R.  R.  Co.,     -        -        6 

V.  Varx,       -        .        -        -    165 

Sober  v.  Supervisors,        -        -    599 

Sohier  v.  Loring,        _        -        -    443 

V.  Williams,         ...    614 

Solly  V.  Forbes,  .        -        _    435 

Sohms  V.  Lias,   -        -        -    763,  766 

Solomon  v.  Bank  of  England,       323 

V.  Dorschler,        -        -        -    403 

V.  Reese,      -        -        -        -    473 

Solon    V.   Virginia,   etc.    R.    R. 

Co.,  -  -  -  -  600,  811 
Somers  v.  Wright,  -  -  118,  589 
Sommon  v.  Garrett,  -        -    829 

Sender  v.  Schechterly,  399,  413,  419 
Sondes  v.  Fletcher,  -  -  -  160 
Sonnenberg  v.  Riedel,  -  -  428 
Soule  V.  White,  -        -        -    210 

Souls  V.  Union  Bank,  -  -  384 
South  V.  Leary,  -        -        -    618 

South  Ottawa  v.  Foster,  -  -  776 
South    Park  Commissioners  v. 

Duule^-y,  -  -  -  -  604 
Southard  v.  Pope,  ...  451 
Southern  R.  R.  Co.  v.  Kendrick,  743 
Southern    Cent.    R.    R.    Co.    v. 

Moravia,  -  -  533,  534,  677 
Southwick  V.  Estes,  .  -  -  750 
Southworth  v.  Smith,  455,  456,  467 
Sowers  v.  Dukes,  -  -  .  -  786 
Spackman  v.  Byers,  .  -  -  812 
Spafford  v.  Goodell,  -  -  -  13 
Spain  V.  Grove,  ...    666 

Spalding  v.    Bank    of    Susque- 
hanna Co.,        -        -        -    880 
V.  Oakes,     -        -        -        -    134 
V.  Vandercook,  264,  268,  273,  781 
Spann  v.  Battzel,       -        -        -    428 
Sparhawk  v.  Salem,  -        -        -      45 
Sparks  v.  Company,  etc.  Liver- 
pool Water  Worlds,     -        -    495 
Sparrow  v.  Paris,     490,  492,  509,  513 


TAJ3LE   OF   OASES   CITED. 


Ixxv 


Pages. 

Spaulding  v.  Lord,    -        -    539,  550 

Speaker  v.  McKenzie,       -        -        6 

Spear  v.  Smith,  -        -    490,  504 

V.  Stacy,      -    134,  187,  190,  191 

Spears  v.  Sierret,       -        -        -    293 

Speck  V.  Phillips,       -        -        -    255 

Spencer  v.  Gates,       -        -        -    809 

T.  Maxfield,         -        -        -    550 

V,  Perrv,      .        -        -        -    452 

V.  Prindle,  -        -        -        -    327 

V.  St.  Paul,  etc.  R.  R.  Co.,    703, 

765 

V.  Tilden,     -        -        -    489,  504 

Speybey  v.  Hide,       -        -    465,  400 

Spicerv.  Chicago,  etc.  R.  R.  Co.,  198, 

814 

V.  Hamot,    -        -        -        -    421 

V.  Hoop.      -        -        -    478,  526 

Spiller  V.  Creditors,  -    413,  414,  415 

Spiva  V.  Williams,    -        -        -    8'28 

Spooner  v.  Brooklyn  City  R.  Co. ,   70 

Sprague  v.  Brown,    -        -    238,  239 

V.  Craig.       -        -        -        -    244 

v.  Hazenwinkle,  -        -    419 

V.  Irwin,      -        -        -        -    770 

Spraneberger  v.  Dentler,  -    432 

Spray  v.  Ammerman,       -        -     803 

Spring  Garden  Association    v. 

Tradesmen's  Loan  Asso.,  -  412 
Spring-dale  Association  v.  Smith,  280 
Springer  v.  Berry,  -  -  -  173 
Springfield  Bank  v.  Merrick,  -  673 
Springfield  M.  &  F.  Ins.  Co.  v. 

Tincher,       -        -        -        -    323 

Sprinkle  v.  Martin,  -        -    398,  423 

Sproule  V.  Legge,      -        -        -    G41 

V.  Samuels,  .        _        .    4()2 

Squier  v.  Gould,        -        -    763,  765 

Squire  v.  HoUenbeck,        -        -    236 

T.  Western  U.  Tel.  Co.,      -      83 

St.  Albans  v.  Farley,         -        -    419 

St.  John  V.  Mayor,    -        -     121,  765 

V.  Purdy,     -        -        -        -    370 

St.  J.,  etc.,  R.  R.  Co.  V.  Chase,  -      26 

St.  Louis,  etc.  R.  R.  Co.  v.  Lur- 

ton, 110 

V.  Myrtle,    -        -        -        -    803 

T.  South,      -        -        -        -    824 

St.  Martin  v.  Desnoyer,    -        -    804 

St.  Paul  Division  v.  Brown,     -    449 

St.  Peters  Church  v.  Beach,  724,  742 

Staats  V.  Evans,         -        .        -    470 

V.  Ten  Eyck,       -        -    140,  594 

Stackpole  v.  Keay,    -        -        -    402 

Stacv  V.  Kemp,         -        -        -    279 

V.  Portland  Pub.  Co.,        -    748 

Stadwell  v.  Cooke,     -        -        -    703 

Stafford  v.  Green,      -        -        -    820 

Stake  V.  Seymour,     -        -        -    413 

Stakes  v.  Becknagle,         -        -    468 

Stalcope  V,  Copner,  -        -        -    780 


Pages. 
Stamps  V.  Brown,      -        -        -    416 
Stanard  v.  Eldridge,          -        -    290 
Stanley  r.  Beatty,      -        -        -    417 
V.  West  Ins.  Co.,        -        -      41 
V.  Westrope,        -        -    403,  423 
Stanton  v.  Embrey,  -        -        -    799 
V.  Hart,        -        -        -        -    747 
Stanwood  v.  0wen,  -        -        -    410 
V.  Whitmore,       -        -        -     745 
Staples  V.  Parker,      ...    525 
Star  V.  Moore,    -        -        -        -    350 
Star  Glass  Co.  v.  Morey,  -        -    294 
Starbird  v.  Barron,  -        -        -    287 
Starbuck  v.  Luzenby,        -        -    775 
Stark  V.  Hill,     -        -        -        -    291 
V.  Oluey,      -        -        -        -    670 
V.  Price,       ....     617 
v.  Thompson,      -        -    384,  429 
Starkweather  v.  Quigley,          -    771 
Starr  v.  Richmond,   -      419,  431,  433 
Starrett  v.  Barber,     -      381,  405,  413 
State  V.  Autery,         ...    742 
V.  Avery,     -        -        -        -    788 
V.  Briggs,     -        -        -    465,  468 
T.  Crane,      -        -        -        .    470 
V.  Eagle,      -        -        -        -    807 
V.  Falwell,  -        -        -        -    788 
V.  Freeman,         ...    804 
V.  Goddard,         -        -        -    246 
V.  Hascall,  -        -        .        -    805 
V.  Kruttschmitt,          -        -    333 
V.  Maves,     -        -        -        -    599 
V.  Mckee,    -        -        -        -    740 
V.  McLeod,  -        -        -        -    804 
V.  Muller,     -        -        -        -    246 
V.  Povi-ell,    ....    155 
V.  Rheinhardt,     -        -        .    780 
V.  Shiuborn,         ...     788 
V.  Spicer,     .        .        -    456,  458 
V.  Steeu,      -        -        -        -    598 
V.  Tavlor,     -        -        -        -    494 
V.  Tliomas,  -        -  70,  76,  98,  423 
V.  Watson,  -        -        -        -    208 
State  Bank  v.  Ai'mstrong,         -    406 
V.  Ensminger,      -        -        -    403 
V.  Fox,          -        -        -        -     187 
V.  Holcomb,        ...    704 
V.  Locke,     -        -        -        -    406 
V.  T%veedy,           -        -        -    417 
V.  Wells,      -        -        -        -    353 
Steamboat    Charlotte  v.   Ham- 
mond,   876 

Steamboat  Co.  v.  Whilden,       -      24 
Steamboat  Wellsville  v.  Glisse,   263, 
275,  282,  301 
Stearine,    etc.    Co.    v.    Heintz- 

mann,  ...    131^  174 

Stearns  v.  Barrett,  -  -  -  513 
V.  Brown,  -  -  -  -  633 
V.  Martin,  .  -  -  -  275 
V.  Raymond,       -        -        .    163 


Ixxvi 


TABLE   OF    CASES    CITED. 


Stearns  r.  Tappen, 
Stebbins  v.  Smith, 

V.  Stebbins, 
Steele  v.  Thatcher, 

V.  Western  I.  L 
Steen  v.  Prairie  Rose, 
Steer  v.  Burden, 

V.  Crowley, 
Steger  v.  Bush,  - 
Stein  V.  Barden, 
Steinman  v.  Magnus, 
Stephen  v.  Smith, 
Stephens  v.  Evans,    - 

V.  White,     - 
Stephenson  v.  Axson, 

V.  Ingham,  - 

V.  Little,      - 

V.  Muir, 
Sterns  v.  Marsh, 
Sterret  v.  Kaster, 
Sterrett  v.  Creed, 
Stert  V.  Riggs,   - 
Stetson  V.  Faxon, 
Stevens  v.  Adams,     - 

V.  Barrett,   - 

V.  Barringer, 

V.  Briggs,     - 

V.  Coffeen,  - 

V.  Cooper,    - 

V.  Davis, 

V.  Gaylord,  - 

V.  Goodell,  - 

V.  Gwathmey, 

V.  Lockwood, 

V.  Lyford,    - 

V.  Miller,      - 

V.  Morrow,  - 

v.  Rovve, 

V.  Wilkinson, 
Stevenson  v.  Belknap, 

V.  Harrison, 

V,  Maxwell, 

V.  Newnham, 

V.  Smith, 
Stewai-t's  Appeal, 
Stewart  v.  Ahrenfeldt, 

V,  Bedel, 

V.  Boc-k, 

v.  County,  - 

V.  Davis, 

V.  Drake,      - 

V.  Eden, 

V.  Ellice, 

V.  Fit(-h, 

V.  IIoi)kinR, 

V.  Maddox, 

V.  Martin,    - 

V.  Ripon, 

V,  Tevri, 

V.  Wells,      - 
Stickney  v.  Allen, 


Pages. 

-  434 

-  374 

-  359 

-  142 
N.  Co.,  -  821 

-  186 

-  13 

-  13 

-  382 

-  795 
426,  428,  430 

-  758 

-  290 

-  7G0 

-  677 

-  411 

-  163,  164 

-  563 

-  281 

-  233 

-  812 

-  455 
6 

-  209 

-  527 

-  677,  693 

-  827 


-  679 

-  803 

-  563 

-  357 

-  622 

-  693 

-  177,  183 

-  763 

-  299 

-  8S0 

-  247 

-  281 

-  721 

-  159 

-  594 

-  820 

-  763,  764 

-  440 

-  430 

-  477,  505 

-  280 

-  604 

-  383 

-  140 

-  442 

-  639 

-  809 

-  398,  402 

-  719,  734 

-  242,  609 

-  159 

-  810 

-  211 

-  240 


Pagers, 
Stickney  v.  Bronson,  -        -    811 

Stiegermau  v.  Jeffries,  -  -  289 
Still  V.  Hall.  -  -  -  280,  675 
Still  well  V.  Barnett,  -    721,  724 

V.  Chappell,         -        -        -    290 

V.  Temple,  -  -  -  -  476 
Stimpson  v.  Railroad,  -  -  720 
Stitson  V.  Hannibal,  etc.  R.  R. 

Co.,  -----  64 
Stockbridge   Iron  Co.    v.    Coue 

Iron  Works,  -  -  -  169 
Stockfort  Water  Works  Co.   v. 

Potter,  -        -        -        -      13 

Stockton  V.  Guthrie,  -        -    606 

V.  Scobie,  -  -  -  -  H29 
Stoddard  v.  Treadwell,  263,  280,  292, 

297 
Stokes  V.  Becknagle, 

V.  Saltenstall,      -        -        - 
Stone  V.  Bank  of  Cape  Fear,    - 

V.  Bennett,  .        _        - 


V.  Codman, 
V.  Covell,     - 
V.  Dickinson, 
V.  Hooker,  - 
V.  Locke, 
V.  Lewman, 
V.  Seymour, 
V.  Sprague, 
V.  Swift, 
V.  Talbot,     - 
Stoner  v.  Hensicker, 
Storall  V.  Smith, 
Storer  v.  Stoi-er, 
Storey  v.  Menzies, 
Storm  V.  Green, 
Story  V.  Krewson, 
V.  Livingston, 


448 

63 

246 

675 

-  58 

-  796 

-  213 

-  135 

-  678 

-  426 
-  398,  399,  401 

-  456 

-  747 
-  406,  408 

-  209 

-  738 

-  592 

-  346 

-  721 
462,  463,  464 

-  687 


v.  N.  T.  etc.  C.  R.  R.  Co.,  77,  118 
Stoughton  V.  Lynch,  -        -    687 

V.  Porter,  -  -  -  -  137 
Stow  V.  Russell,  -  -  465,  468 
Stowe  V.  Haywood,  -  -  732,  738 
Stowell  V.  Barber,     -        -        -    399 

V.  Lincoln,  -  -  -  10,  IS 
Straker  v.  Graham,  -  -  -  804 
Strand  v.  Young,  -  -  -  747 
Strang  v.  Holmes,     -        -        -    43S 

V.  Whitehead,  -  -  763,  766 
Straiten  v.  Rastall,  -  -  -  427 
Strawn  v.  Coggswell,  -  -  109 
Streeper  v.  Williams,  489,  512,  521 
Street  v.  Blav,  -  -  -  246,  266 
Streeter  v.  Rush,    489,  504,  505,  507, 

526 

v.  Streeter,  -  -  -  282,  289 
Streubel  v.  Milwaukee,  etc.  R. 

R.  Co.,  -        -        .        -        7 

Stringer  v.  Coombs,  -        -     342 

Strolierker  v.  Bank,  -  -  -  712 
Strong  V.  Blake,        -        -    455,  456 


TABLE    OF    CASES    CITED. 


Lxxvii 


Pages. 

Pc 

iqes. 

Strong  V.  Campbell, 

- 

- 

55 

Swett  V.  Patrick, 

- 

- 

'141 

V.  De  Forest, 

- 

- 

142 

Swift  V.  Appleljone,  - 

- 

- 

826 

V.  Farmers',  etc.  Bank, 

- 

454 

V.  Appletou, 

- 

736, 

771 

V.  Hawey,    -      452, 

453 

,459, 

,  462 

V.  Barnum, 

- 

- 

165 

V.  Howe, 

. 

- 

812 

V.  Deckerman,     - 

. 

- 

232 

V.  King, 

- 

374, 

377 

V.  Powell,    - 

- 

- 

476 

V.  McCounell, 

. 

- 

347 

V.  Prouty,    - 

- 

. 

314 

V.  Stevens,  - 

. 

- 

374 

S.  W.  R.  R.  Co.  V.  Paulk, 

. 

63 

Stuart  V.  Davidson,  - 

- 

. 

762 

Sword  V.  Keith, 

- 

347, 

349 

V.  Phelps.    - 

- 

- 

163 

Sykes  v.  Town  of  Paulet, 

- 

45 

V.  WiUvins, 

- 

- 

160 

Symes  v.  Oliver, 

- 

- 

165 

V.  Williams, 

. 

354, 

355 

Syracuse  Bank  v.  Davis,  - 

- 

674 

Studbaker  v.  White, 

- 

- 

489 

Syracuse  B.  &  N.  Y. 

R.  R.  T. 

Studwell  V.  Cook,      - 

- 

. 

444 

CoUins, 

- 

- 

379 

Sturges  V.  Knajjp,     - 

. 

. 

713 

Sturgess  v.  Bissell,    - 

- 

. 

100 

Tabor  v.  Hutson, 

. 

719, 

733 

Sturgis  v.  Allis, 

- 

- 

830 

Taffrey  v.  Cornish,    - 

. 

. 

375 

Stuyvesant  v.  Hall,  - 

- 

- 

303 

Taft  V.  Aylwin, 

- 

- 

225 

V.  Hone, 

. 

. 

3<J3 

v.  Pike, 

- 

. 

599 

Sueklinge  v.  Coney,  - 

- 

- 

457 

Tafts  V.  McClintock, 

- 

- 

164 

Suffolk  Bank  v.  Worcester  Bank, 

443, 

Talbot  V.  Herndon,    - 

. 

. 

820 

444, 

698, 

,  700 

V.  National  Bank, 

. 

602, 

622 

Sullivan  v.  P.  &  E.  R.  R.  Co.,  - 

758 

V.  Sebree,     - 

- 

- 

594 

Sully  V.  Durauly, 

- 

- 

96 

Talbott  V.  Peoples,     - 

- 

- 

665 

V.  Trean, 

- 

- 

292 

Talcott  V.  Marston,  493, 

504 

,  549, 

554 

Summers  v.  Mills, 

- 

- 

632 

Talleaferro  v.  Minor, 

- 

- 

334 

Sumner  v.  Beebe, 

- 

- 

620 

Talliaferro  v.  King.  - 

- 

- 

681 

Sumpton  V.  Welch,  - 

- 

. 

277 

Tallman  v.  Truesdale, 

- 

- 

494 

Sunapee  v.  Eastman, 

- 

- 

204 

Tallj^  V.  Ayres,  - 

- 

- 

20 

Supervisors  v.  Anghi, 

- 

- 

286 

Talmage  v.  Wallis,     - 

- 

- 

291 

v.  Clark,      - 

- 

- 

628 

Tamaroa  v.  S.  111.  Univ 

ersil 

ty, 

142 

Surlott  V.  Pratt, 

- 

- 

666 

Tamvaco  v.  Simpson, 

- 

238 

Surrocco  v.  Geary,    - 

- 

- 

5 

Tankersly  v.  Graham, 

- 

- 

291 

Sutherland  v.  First  Nat 

.  Bank, 

351 

V.  Siiburn,   - 

_ 

828, 

830 

V.  Wyer,   131,  150,  : 

lo3, 

176, 

196, 

Tannehill  v.  Thomas, 

. 

- 

772 

238 

Tanner  v.  Hague, 

- 

- 

350 

Sutleff  V.  Gilbert,     - 

- 

807, 

809 

Tardevan  v.  Smith,   - 

- 

475, 

504 

Sutliff  V.  Atwood,     - 

- 

- 

375 

Tarleton  v,  McGawley, 

- 

70 

1,  73 

Sutton  V.  Hawkins,  - 

. 

460, 

462 

Tarpley  v.  Poage, 

. 

. 

290 

V.  Howard, 

. 

54, 

496 

V.  Wilson,    - 

. 

. 

629 

V.  The  Albatross, 

- 

. 

372 

Tate  V.  Innerarity,     - 

_ 

. 

601 

Suydam  v.  Jenkins,  - 

- 

18, 

174 

V.  Missouri,  etc.,  R, 

.  R. 

Co., 

802 

Swan  V,  North  British  Ans. 

Co., 

,    43 

V.  Sherman, 

- 

- 

160 

V.  Tappan, 

- 

6, 

,  766 

V.  Smith. 

. 

447, 

455 

Swanscot  Machine  Co. 

V. 

Par- 

Tater  v,  Mullen, 

- 

- 

811 

tridge, 

- 

. 

692 

Tatum  V.  Mohr, 

. 

- 

617 

Swanson  v.  Cook, 

- 

. 

342 

Taul  V.  Everet,  - 

498 

,  538, 

.  578 

Sweatland  v.  Tuthill, 

- 

_ 

443 

V.  ]\Ioore,      - 

- 

. 

603 

Sweem  v.  Steele, 

- 

- 

130 

V.  Weston,  - 

. 

- 

750 

Sweeney  v.  Doroughty, 

- 

- 

177 

Taunton  v.  Mclrish,  - 

- 

- 

339 

V.  Pt.  Burwell  Harbor  Co., 

28, 

Tayloe  v.  Sandiford, 

399, 

403, 

489, 

100 

525 

Sweet  V.  Bartlett, 

. 

. 

317 

Taylor  v.  AUen, 

. 

- 

378 

V.  Harding, 

. 

. 

447 

V.  Beal, 

. 

. 

261 

V.  McDaniels, 

- 

. 

778 

V.  Bradley,  - 

109 

,  194, 

,  195 

Sweetland  v.  Tuthill, 

. 

. 

469 

V.  Carpenter, 

. 

. 

743 

Sweigart  v.  Berk, 

. 

. 

207 

V.  Church,  - 

_ 

. 

739 

Sweimgen  v.  Willing, 

. 

. 

376 

V.  Cole, 

. 

. 

769 

Sweney  v.  Smith, 

. 

. 

400 

V.  Coleman, 

. 

. 

408 

Swett  v.  Hooper, 

. 

- 

590 

V.  Daniels,  - 

. 

. 

574 

V.  Horn, 

- 

- 

471 

V.  Deblois,  - 

- 

- 

357 

Ixxviii 


TABLE   OF   CASES    CITED. 


Pages. 

Taylor  v.  Dnstin,        -        -  -  705 

V.  Gallaiid,  -        -        -  -  8 

V.  Gould,      -        -        -  -  205 

V.  Jones,      -        -        -  411,  762 

V.  Knox,      -      589,  604,  632,  629 

V.  McGuire,         -        -  -  109 

V.  McLean,  -        -        -  -  763 

T.  Meek,      -      493,  545,  554,  561 

V.  Monroe,  -        -        -  -  766 

V.  Morris,     -        -        -  -  305 

V.  Nerr,        .        -        -  -  49 

V.  Oder,       -        -        -  -  376 

V.  Plumer,  -        -        -  -  164 

V.  Railway,          -        -  719,  731 

V.  Reed,       -        -        -  -  148 

V.  Robinson,        .       -  -  232 

V.  Smith,      -        -        -  -  562 

V.  Sturgingger,  -        -  -  823 

V.  Talbot,     -        -        -  -  433 

V.  The  Marcella,          -  -  538 

V.  Wells,      -        -        -  -  770 

V.  Wing.      -        -        -  -  543 

V.  Zamria,    -        -        -  -  255 

Tazewell,  Ex'r,  v.  Barrett,  -  694 

Teagarden  v.  Hatfield,     -  -  30 

Teal  V.  Russell,          -        -  -  815 

Tebbs  V.  Carpenter,  -        -  -  626 

Teese  v.  Hnutingden,       -  -  143 

Teft  V.  Windsor,       -        -  -  736 

Tempest  v.  Linley,    -        -  -  247 

Temple  v.  Scott,         -        -  -  311 

Tenipleman  v.  Fountleroy,  -  694 

Templer  v,  McLacIilan,     -  -  267 

Ten  Broeck  v.  De  Witt,    -  -  317 

Ten  Eyck  v.  Houghtaling,  538,  596, 

606 

Tenney  v.  Evans,       -        -  -  805 

Tenny  v.  New  Jersey  S.  B.  Co.,  811 

Tensley  v.  Tensley,    -        -  -  297 

Tentv."  Toledo,  etc.  R.  R.  Co.,  -  26 

Terre  Haute  v.  Turner,     -  -  5 
Terre  Haute,  etc.  R.  R.  Co.  v. 

Vauetta,       -        -        -  -  810 

Tamil  V.  Rankin,      -        -  -  7 

V.  Smith,      -        -        -  -  350 

V.  Walker,  -        -        -  466,  468 

Terry  v.  Allis,    -        -        -  -  7 

V.  Roberts,  -        -        -  -  313 

Thatcher  v.  Dinsmore,      -  -  373 

V.  Kanclier,         -        -  -  796 

Thayer  v.  Brackett,  455,  459,  461,  463 

V.  Brooks,    -        -        -  -  202 

V.  Denton,  -        -        -  398,  404 

V.  Hodges,  -        -        -  -  326 

V.  Sherloc^k,          -    767,  769,  826 

Thetford  v.  Hubbard,        -  -  453 

Tholen  v.  DuHy,         -        -  -  493 

Tliolmen  v.  Barber,  -        -  -  442 

Thomas  v.  Beckman,        -  135,  C66 

V.  Conunonwealth,     -  -  837 

V.  Dickinson,       -        .  -  804 


Thomas  v.  Doub, 
V.  Dunaway, 
V.  Edwards, 
V.  Evans, 
V.  Hethern, 
V.  Hubbell, 
V.  Isett, 
V.  Kelsey,    - 
V.  JNIallinckrodt, 
V.  School, 


Pages. 

-  503 

-  386 

-  601 

-  455,  457 

-  427 

-  134,  135 

-  737 

-  399,  432 

-  786 

-  633 


V.  Sternheimer,  -  -  -    629 

V.  Tliompson,      -  -  -    440 

V.  Todd,       -        -  -  359,  360 

V.  Weed,      -        -  -  -    598 

V.  Wilson,   -        -  -  -    600 

V.  Wincliester,    -  -  28,  73 

Thome  v.  Boast,        -  -  -    261 

Thompson  v.  Briggs,  -  -    375 

V.  Button,    -        -  -  -    809 

V.  Christian,        -  -  -    291 

V.  Davenport,      -  -  -    42O 

V.  Dickhart,         -  -  -    795 

V.  Ellsworth,       -  -  -    190 

V.  Fausate,  -        -  -  -    434 

V.  French,   -        -  -  -     763 

V.  FuUenwider,  -  -  -    091 

V.  Gibson,    -        -  -  199,  201 

V.  Gould,     ...  -    759 

V.  Haislip,  -        -  -  -    776 

V.  Hoagland,       -  _  _    540 

V.  Hudson,  -        -  416,  496,  498 

V.  Jackson,          -  -  -    118 

V.  Jones,      -        -  -  -    594 

V.  Kessel,     -        -  -  -    289 

V.  Ketcham,        -  632,  633,  663 

V.  Lee  Co.,  -        -  -  -    684 

V.  Mansfield,        -  -  -    291 

V.  Monrow,           -  _  -    664 

V.  Morgan,  -        -  -  -    674 

V.  N.  E.  R'y  Co.,  -  -      70 

V.  Page,       -        -  -  -    204 

V.  Percival,          -  -  .    428 

V.  Perkins,  -        -  -  -    804 

V.  Phelan,    •        -  -  419,  420 

V.  Pickel,     -        -  -  -    550 

V.  Powning,         -  -  73,  743 

V.  Richards,         -  .  -    263 

V.  Shattuck,        -  -  110,  150 

V.  Stevens,  -        -  -  -    588 

V.  Stewart,          _  -  _    630 

v.  Thompson,      -  761,  784,  832 

Thoms  V.  Dingley,     -  -  -     134 
Thorn,  in  re  —  Smith's  Appeal,     309 

TJiorn  V.  Mosher,       -  -  456,  467 

Tliornborrow  v.  Whitacre,  -    491 

Thorndike  V.  United  States,  531,  539, 

599,  618 

Thornton  v.  Place,    -  160,  245,  267 

V.  Smith,     -        -  -  -    338 

V.  Turner,    -        -  -  -        7 

Thorpe  v.  Burgess,    -  -  -    460 


TAJ3LE   OF   CASES   CITED. 


Ixxix 


Pages. 

Thoroughgood  v.  Walker,        -    o^o 

Tburlow  V.  Oilman,  -        -        -    420 

Thurman  v.  Wild,     -        -        -    086 

Thurstou  V.  liaucock,       -        -        4 

V.  James,     -        -        -        -    231 

V.  Ludwig,  -        -        -        -    433 

V.  Marsh,     -        -        -    444,  4G9 

V.  Prentiss,  -        -    563,  568 

V.  Spratt,     -        -        -    145,  147. 

Tibbetts  v.  Haskins,  -    78G,  799 

Ticonic  Bank  v.  Johnson,  -    575 

Tiernan  v.  Hinman,  -        -        -    498 

Tiffany  v.  St.  John,  -        -    471,  473 

Tift  V.  Culver,    -        -        -        -    731 

Tilford  V.  Roberts,     -        -        -    370 

Tilley  v.  Courtier,      -        -        -    447 

Tillotson  V.  Clieetham,      -        -    731 

V,  Grapes,    -        -        -        -    390 

V.  Preston,  -        -        -        -    C77 

V.  Smith,      -        -        -        -      13 

Tillou  V.  Britten,        -        -     444,  704 

Tillson  V.  United  States,  -        -    599 

Tilton  V.  Alcot,  -        -        -        -    433 

Timnions  v.  Dunn,    -        -     277,  297 

Tindall  v.  Bell,  -        -        -        -    143 

V.  Meeker,   -        -        -        -    713 

Tingley  v.  Cutler,      -        -     505,  506 

Tinman  v.  Leland,     -        -        -    436 

Tinsley  v.  Ryan,         -        -        -    373 

Tinsniau  v.  Belvidere,  etc.  R.  R. 

Co., 48 

Tippin  V.  Ward,  -        -        -     176 

Tipton  V.  Finer,  .        .        _    285 

Tisdale  v.  Norton,      -        -        -      71 

Titus  V.  Corkins,        -       73,  721,  743 

V.  Northbridge,  -        -        44,  45 

Tobey  v.  Barber,        -        -     875,  377 

Tobin  V.  Shaw,  -        -        -        -    156 

Todd  V.  Bank  of  Kentucky,     -    634 

V.  Botchford,       -        -        -    600 

V.  Hawkins,         -        -        -        4 

V.  Parker,    -        -        -        -    451 

V.  Warner,  -        •        -        -    79.> 

Tolbert  v.  Harrison,  -      311,  312,  313 

Toledo,  etc.  R.  R.  Co.  v.  Seals,     813 

V.  Boddeley,         -        -        -     158 

V.  Harmon,  -        -     749,  754 

V.  Smith,      -        -        -        -    796 

Toll  V.  Hiller,     -        -        -     845,  678 

Tondinson  v.  Derby,       198,  763,  766 

V.  Kensella,         .        _        .    403 

Tompkins  v.  Hill,       -        -        -    563 

Toms  V.  Whitby,       -        -         31,  38 

Tonawanda  R.  R.  Co.  v.  Mun- 

ger, 5 

Tone  V.  Bruce,  -        -        -        -    285 
V.  Nelson,    -        -        -        -    291 
Tooke  V.  Bonds,  -        -    404,  680 

Tootle  V.  Chfton,        -        -  9,  13 

Torbert  v.  McReynolds,     -    624,  G36 
Torey  v.  Hadley,        -        -        -    311 


Pages. 
Torrey  v.  Black,  -  -  -  340 
Torry  v.  Baxter,  ...  359 
Totton  V.  Cooke,  -  -  -  563 
Toulmin  v,  Sagei",  -  -  -  703 
Touro  V.  Cassin,  -  -  -  631 
Tourtelott  v.  Jenkins,  -  -  207 
Tousley  v.  Healey,  -  -  -  464 
Touzen  v.  Havre  de  Grace  Bank,  447 
Towlev.  N.  H.  etc.  R.  R.  Co.,  190 
Town  of  Genoa  v.  Woodruff,  -  684 
Townsend  v.  Bank  of  Racine,     364, 

370 

V.  Bonevill,  -        -        -    788 

V.  Jennison,         -        -        -    333 

V.  Riley,       -        -        -        -    683 

Trabue  v.  Short,         -        -        -    635 

Tracy  v.  Strong,         -      444,  453,  703 

v.  Wikoff,    -        -        -    687,  689 

Train  v.  Gold,    -        -        -        -     135 

Trask   v.    Hartford,   etc.   R.  R. 

Co., 184 

V.  Vinson,  -  -  -  -  290 
Travers  v.  Kansas  Pacific  R.  R. 

Co.,  -----  757 
Travis  v.  Daffan,  -  -  -  84 
Treadwell  v.  Moore,  -  -  403,  409 
Treat  v.  Barb,  -  -  -  -  164 
V.  Browning,  -  -  232,  234 
V.  Stanton,  -  -  -  -  204 
Trebilcock  v.  Wilson,  -  333,  454 
Trellewney  v.  Thomas,  -  588,  598 
Trenton    M.    Life    Ins.    Co.    v. 

PeiTine,  -  -  -  -  763 
Treschett  v,  Hamilton  M.  Ins. 

Co., 812 

Trescott  v.  King,  -  -  898,  430 
Trevor  v.  Wall,  -        -        -    830 

Trickey  v.  Larne,  -  -  -  293 
Trigg  V.  Northcut,  -  -  -  196 
Trimbey  v.  Vignier,  -  -  631,  635 
Trimbley  v.  Barron,  -  -  -  441 
Trimm  v.  Marsh,  -  -  -  471 
Trinidad  Nat.  Bank  v.  Denver 

Nat.  Bank,  -  -  -  131 
Tripp  v.  Grouner,  .  -  -  724 
Trotter  v.  Grant,     398,  899,  406,  583, 

618 
v.  Trotter,   -        -        -        -    638 
Troubar  v.  Hunter,   -        -        -    630 
Trouer  v.  Sharp,         -        -        -    598 
Troup  V.  Wood,  ...    350 

Trout  V.  Kennedy,  -  -  .  797 
Trow  V.  Trow,  -  -  -  -  466 
Trowbridge  v.  Mayor,  etc.,  -  301 
Trowler  v.  Elder,  -  -  -  535 
Troxell  v.  Haynes,  -  -  .  143 
Troxwell  v,  Fugate,  -  -  -  603 
Troy  v.  Cheshire  R.  R.  Co.,  -  187 
Troy,  etc.  R.  R.  Co.  v.  N.  Turn- 
pike Co.,  -  -  -  -  793 
Troy  City  Bank  v.  Grant,         -    351 


Ixxx 


TABLE   OF   CASES    CITED. 


Pages. 

True  V.  International  Tel. Co.,  83, 

130,  238 

Tniitt  V.  Baird,           -        -        -  799 

Truscate  v.  King,       -        -        -  41,5 

Trustees  v.  Keudrick,        -    373,  37o 

V.  Lawrence,       -        .        -  G28 

V.  McCaughy,      -        -        -  674 

V.  Walrath,          -        -        -  525 

V.  Youmans,        -        -        -  4 

Tryon  v.  Carter,         -        -        -  533 

Tucker  v.  Baldwin,   -        -    377,  434 

V.  Bracket,  -        -        -        -  416 

V.  Cornwell,         -        -        -  375 

V.  Ives,         -        -        -        -  618 

■V.  Page,        -        -        -        -  705 

Tuckermau  v.  Newhall,  206,  352,  430, 

432,  436,  441 

Tuffli  V.  Ohio,  etc.  Trust  Co..   -  544 

Tufts  V.  Plymouth  Gold  M.  Co.,  331 

TuUidge  v.  Wade,      -        -        -  721 

Tunbridge-Wells  Dippers'  Case,  52 

Tuncan  Fishing  Co.  v.  Carter,  5 

Tunno  v.  Fludd,         -        -        -  277 

Tupper  V.  Powell,      -        -        -  5G2 

Turhune  v.  Cotton,    -        -        -  399 

Turner  v.  Bank  of  Fox  Lake,     371, 

374 

V.  Carter,     -        -        -        -  776 

V.  Child,      -        -        -        -  358 

V.  Collier,     -        -        -        -  339 

V.  Crawford,        -        -        -  318 

V.  Culvert,  ...        -  570 

V.  Gibbs,      -        -        -        -  280 

V.  Hadden,  -        -        -        -  203 

V.  Hitchcock,      -        -        -  212 

V.  McCarthy,       -        -        -  825 
V.  North  Bearch,  etc.  R.  R. 

Co., 755 

V.  Price,       -        -        -    417,  419 

V.  Satterlee,         -        -        -  315 

V.  Thomas,  -        -        -        -  221 

Turne}'  v.  Williams,           -        -  625 

Turpin  v.  Reynolds,  -        -        -  225 

V.  Slodd,      -        -        -        .  332 

Turrentine  v.  Perkins,      -        -  609 

Tuthill  v.  Scott,         -        -        -  13 

Tuttle  v.  Cooper,        -        -        -  208 

V.  Nettle,     -        -        -        -  430 

Twitty  v.  McGuire,   -        -        -  282 

Twomley  v.  C.  P.  N.  etc.  R.  R.  Co.,  63 

Twopenny  v.  Young,         -        -  442 

Tyler  v.  Bland,  -        -        -        -  702 

V.  Wilkinson,      -        -        10,  13 

Tyner  v.  Stoops,        -        -    373,  375 

Tyrrell  v.  Lockhart,           -        -  824 

Tyson  v.  Booth,          -        -        -  S30 

V.  Commissioners,       -        -  5 

V.  Ewiug,     -        -        -        -  717 

Uhland  v.  Uhland,    -        -        -  617 

Ulmer  v.  Cunniugliam,     -        -  211 


Pages. 

Ulman  v.  Kent,  -        -        -     108 

Underbill  v.  Goff,      -        -     173,  615 

V.  Taylor,     -        -        -        -    231 

V.  Wilton,    -        -        -        -       67 

Underwood  v.  Parks,      232,  393,  394 

V.  Waldron,         -        -        -    788 

Union  Bank  v.  Lobdell,    -        -    421 

V.  IMott,        -        -        -        -    207 

V.  SoUe,        -        -        -        -    622 

V.  Williams,        .        -        .    681 

Union  Bank  of  Chicago  v.  Bald- 

enwick,  .  .  -  .  860 
Union  Institution  v.  Boston,  -  550 
Union    Pacific    R.    R.    Co.    v. 

Hand,  -  -  -  -  810 
V.  House,  -  -  -  -  811 
V.  ]\Iilliken,  -        -        -    811 

Union  Turnpike  Co.  v.  Jenkins,  820 
United  States  v.  Arnold,  -        -    599 
v.  Child,       -        -        -        -    430 
V.  Clyde,      -        ...    430 
V.  Eckford,  -        -        -    401 

V.  Freis,  -  -  -  -  805 
V.  Gibert,  -  -  -  -  740 
V.  Gurney,  -  -  -  458,  496 
V.  HaskeU,  .  .  .  -  740 
V.  Hoar,  -  .  -  -  599 
V.  Howard,  ...    433 

V.  January,  -        -        -    401 

V.  Justice,  -  -  -  -  430 
V.  Kirkpatrick,  -  -  405,  419 
V.  La  Jeune  Eugenie,  -    631 

V.  Linn,  .  -  .  _  401 
V.  Magoon,  -  .  -  -  770 
V.  Smith,  -  -  17,  118,  238 
V.  Speed,  -  -  .  -  118 
United  States  Bank  v.  Bank  of 

Georgia,   -        -        -        -    363^ 
V.  Chapin,    -        -        -        -    543 
U.   S.    Service  Co. —  Johnston's 

Claim,  in  re,  -  -  43,  142 
Updegrove  v.  Zimmerman,  -  232 
Upham  v.  Lafavour,      413,  419,  420, 

421 
V.  Smith,  -  -  224,  476,  512 
Uphamas  v.  Dickinson,  -  -  813 
Upjohn  v.  Ewing,  -  -  206,  435 
Uppdegroff  v.  Spring,  -  -  693 
Upton  V.  Julian,  .  _  .  282 
Usher  v.  Dansey,       ...    762 

Vail  V.  Foster.  ...  -  375 
V.  McMillan,  -  -  -  465 
V.  Nickerson,  -  -  709,  711 
Vaiso  V.  Delaval,  -  -  -  804 
Valentine  v.  Ruste,  -  -  -  608 
Valet  v.  Horner,  -  -  -  286 
Van  Aken  v.  Gleason,  -  -  416 
Van  Arsdale  v.  Randell,  -  83,  130 
Van  Beuschooten  v.  Lawson,      678, 

687 


TABLE  OF   CASES   CITED. 


Ixxxi 


Pagea. 
Van  Buren  v.  Van  Gaasbeck,  -  550 
Van  Blarcum  v.  Broadway  Bank,  381 
Van  Brunt  v.  Van  Brunt,  -  434 
Van  Buren  v.  Digges,  265,  278,  279, 
282,  292,  510,  515,  525 
Vance  v.  Erie  R,  E.  Co.,  -  -  750 
V.  Vance,  -  -  -  -  622 
Van  Cleef  v.  Therasson,  -  371,  374 
Vaudenburgh  v.  Truax,  -  43,  61,  64 
Vanderbilt  v.  Eagle  Iron  Works,  282, 

283 
Van  de  Sande  v.  Hall,  -  -  275 
Vanderslice  v.  Newton,  -  -  763 
Van  Densen  v.  Blum,  -  -  283 
V.  Young,  -  -  -  -  794 
Vandine  v.  Burpee,  -  -  786,  79S 
Van  pusen  v.  Sulphin,  -  -  233 
Van  Epps  v.  Dellave,  -  -  375 
V.  Harrison,  265,  277,  291,  297 
Van  Huson  v.  Kauouse,  -  471,  615 
Van  Lcuven  t.  Lyke,  -  -  769 
Van  Middlesworth  v.  Van  Mid- 

dlesworth,    -        -        -        -    373 

Van  Ness  v.  Fisher,  -        -        -    121 

Vanpell  v.  Woodward,      -        -    456 

Van  Raugh  t.  Van  Arsdaln,     -    635 

Van  Rensselaer  v,  Cliadwick,  -    437 

V.  Jewett,  538,  596,  607,  612,  613 

V.  Jones,       -        -        -     607,  611 

V.  Platner,  607,  611,  759,  762,  820 

V.  Roberts,  398,  399,  405,  410,  411 

Van  Runsdick  v.  Kane,        -    -    631 

Van  Schaick  v,  Delaware  Canal,  191 

V.  Edwards,         -        -        -    631 

V.  Trotter,   -        -        -        -    822 

Van  Steinbergher  v.  Tobias,     -    215 

Vansteinburgh  v.  Hoffman,     -    375 

Van  Tine  v.  Crane,    -        -        -    207 

Van  Vecter  v.  Brewster,  -        -    339 

Vanvalkeubergh  v.  Fuller,       -    713 

Van  Vleet  v.  Adair,  -        -    772,  773 

Van  Wart  \,  Woolley,      -        -    246 

Van  Wyck  v.  Allen,        111,  130,  194 

Varick  v.  Crane,        _        .        _    643 

Vauglian  v.  Bibb,      -        -        -    635 

V.  Goode,     -        -        -        -    618 

V.  Howe,      -     607,  613,  614,  629 

Vaughan  and  Telegraph,  The,     328, 

333,  343 
Veazie  v.  Bangor,  -  -  -  160 
Vedder  v.  Hildreth,  -  -  -  58 
Veiths  V.  Hagge,  -  -  -  583 
Velhac  v.  Biven,  -  -  -  330 
Venard  v.  Cross,  -  -  -  6 
Verges  v.  Golden,  -  -  -  454 
Vernan  v.  Smith,  .  -  .  285 
Verner's  Estate,  -  -  -  623 
Verney  v.  Iddings,  -  -  -  708 
Vernon  v.  Keys,  -  -  -  51 
Very  v.  Lew,  -  -  -  -  426 
Vicars  v.  Wilcocks,  -  -  49,  50,  68 
Vol.  I— f 


Pages. 
Vicary  v.  Farthing,  -  -  -  b04 
Vicksburg,    etc.    R.    R.    Co.  v. 

Potter,  -        -        -    721,  757 

Vigers  v.  Aldrich,  -  -  -  350 
Vighte  V.  Hoagland,  190,  191,  199 
Vilas  V.  Downer,  .  .  -  799 
Vinal  V.  Richardson,  -  -  620 
Vining  v,  Luman,  -  -  .  285 
Vinton  v.  Middlesex  R.  R.  Co.,  758 
Voltz  V.  Blackmar,  -  -  721,  724 
Von  Fragstein  v.  Windier,  -  721 
Von  Hemert  v.  Porter,  583,  580,  632, 

663 
Von  Shoening  v.  Buchanan,  13,  827 
Voorhees  v.  Stoothoff,  -  -  623 
Voorhies  v.  Child.  -  -  -  207 
Vredenbergli  v.  Hallett,  -  709,  711 
Vyse  V.  Wakefield,     -        -        -    620 

Waddell  v.  Luer,       -  -  -    428 

Wade's  Case,      -      358,  363,  444.  453 

Wade  V.  Hallegan,    -  -  285,  286 

V,  Thaver,   -        -  -  -     721 

V.  Wade,      -        -  -  622,  692 

Wadham  v.  Marlord,  -  -      42 

Wadley  v.  Davis,       -  -  .    287 

Wadsworth  v.  Smith,  -  -    279 

V.  Tillotson,         -  -  -      13 

Waestell  v.  Atkinson,  -  470.  697 

Waffle  V.  Porter,       -  -  -        5 

Wagenblast  v.  McKean,  -  459,  461 

Wager  v.  Schuyler,  -  -  -    595 

AVagner  v.  Holbrunner,  -  -    233 

V.  Jacoby,   -        -  -  175,  177 

Waa-staff  v.  Ashton,  -  -    232: 

Wainwright  v.  Webster,  -  332,  364 

Wakefield  v.  Beckley,  -  -    556 

Wakelev  v.  Hart,      -  -  833,  824 

Walcott  V.  Coleman,  -  -    823 

V.  Hall,         -        -  -  -    234 

V.  Keith,      -        -  -  -     163 

Walden  v.  Sherburne,  -  -    615 

AValdo  V.  Long,          .  .  .     140 

Waldron  v.  Whitlock,  -  -    375 

V.  Willard,  -        -  -  -        7 

Waldsmith  v.  Waldsmith,  -     206 

Walker  v.  Bank  of  State  of  N.  Y. ,     7 

V.  Barnes,    -        -  -  -    637 

V.  Bradley,  -        -  -  -    622 

V.  Brown,    -        -  -  -    455 

V.  Constable,        -  -  -    593 

V.  Engler,    -        -  -  -    504 

V.  Erie  R.  R.  Co.,  -  158,  198 

V.  Fuller.     -        -  -  .    724 

V.  Goe,  -        -  -  43,  50,  95 

V.  Hadduck,        -  -  -    606 

V.  Hatton,    -        -  -  -    140 

V,  Hoisington,     -  -  -    279 

V.  Martin,    -        -  -  -    811 

V.  Maxwell,         -  -  -    206 

V.  McCuUock,     -     224,  439,  441 


ixxxii 


TABLE   OF   CASES   CITED. 


Pages. 

Walker  v.  Millard,    -  -        -    279 

V.  Mooro,      -  77,  95,  109,  160 

V.  Orange,    -        -  -        -    160 

V.  Seaborn,           -  -        -    432 

V.  Shoemaker,     -  -        -    286 

V.  Smith,     -        -  -      17,  810 

V.  Wills,       -        -  -        -    619 

V.  Wilson,    -        -  -        -    290 

Wallace  v.  Drew,       -  -        -     213 

V.  Fouche,    -        -  -        -    570 

V.  Gilchrist,         -  -        -    136 

V.  Goodall,  -        -  -        -    237 

V.  Kensall,  -        -  -        -    435 

V.  Mayor,  etc.  of  New  York,  724 

V.  McConnell,      -  -        -    459 

V.  Tumlin,  -        -  -        -    118 

V.  Wallace,  -        -  -        -    61S 

V.  York,       -        -  -        -     142 

Waller  v.  Lacy,          -  -        -    399 

V.  Long,       .        .  -        .    493 

Wallis  V.  Carpenter,  -    490,  498 

V.  Dilley,     -        -  -        -    694 

Walmsley  v.  Cooper,  -        -    221 

Walrath  v.  Redfield,  96,  100,  629 

Walsh,  Ex  parte,       -  -        -     622 

Walsh  V.  Chicago  &  C.  R.  R.  Co.,  78 

Walter  v.  Jenkins,     -  -        -    806 

V.  Richardson,     -  -     177,  185 

V.  Vanderhoof,    -  -        -     830 

Walters  v.  McGirt,    -  -        -    589 

Walther  v.  Wetmore,  -    398.  399 

Waltor  V.  Waltor,     -  -        -    760 

Wamberg  v.  Bimer,  -        -    475 

Wampach  v.  St.  Paul,  etc.  R. 

R.  Co.,          -        -  -    763,  765 

Wanamaker  v.  Bowes,  -        -    242 

Wankford  v.  Waukford,  -        -    357 

Warburg  v.  Wilcox,  -        -    428 

Ward  V.  Bailey,         -  -        -    806 

V.  Benson,   -        -  -        -    242 

V.  Eyre,       -        -  -        -    163 

V.  Fellers,    -        -  -    292,  293 

V.  Howe,      -        -  -    373,  376 

V.  Jewett.    -        -  -        -    478 

V.  Johnson,          -  -    436,  441 

V.  Moller,     -        -  -        -     208 

V.  N.  Y.  Cent.  R.  R.  Co.,  100,  131 

V.  Reynolds,        -  -        -    291 

V.  Smith,  158,  448,  450,  454,  458, 

696 

V.  Vanderbilt,      -  -    106,  158 

V.  Walton,  -        -  -        -    4.32 

V.  Ward,      -        -  -        -    739 

V.  Weeks,    -        -  43,  50,  66,  67 

V.  AVilson,   -        -  -    275,  281 

V.  Wordsworth,  -  -   .     -    317 

Warden  v.  Fosdick,  -  -        -    277 

V.  McMillan,        -  -        -    227 

Warden  v.  Arell,       -  -        -    471 

Ward's  C.  &  P.  L.  Co.  v.  Elkins,    156 

Ware  v.  Otis,     -        -  -        -    404 


Pages. 

Ware  v.  Street,  -    322,  364,  365 

Warfield  v.  Booth,     -     279,  289,  297 

Waring  v.  Cunliffe,  -        -        -    586 

V.  Henry,     -        -        -        -    614 

Warne  v.  Rose,  .        .        .    211 

Warner  v.  Bacon,      -    184,  187,  763 

V.  Caulk,      -        -        -        -    286 

V.  Durham,  .        .        _    433 

V.  Griswold,        -        -        -    204 

V.  Juif,         -        -        -        .     550 

V.  New  York  C.  R.  R.  Co.,     809 

V.  Robinson,         -        -        .    805 

V.  Thurlo,    -        -        -        -     599 

Warrall  v.  Munn,      -        -        -    630 

Warre  v.  Calvert,       -        -        -       10 

Warrell  v.  McClanaghan,  -    505 

Warren  v.  Boynton,  -        -    304 

V.  Cole,        -        -        -    736,  743 

V.  Delippes,  -        -        -      12 

V.  Doolittle,         -        -        -    826 

V.  McCarty,         -        -        -    602 

V.  Mains,      .        -        -     447^  456 

V.  Skinner,  -        -        -        -    427 

V.  Tyler,       -        -        -    583,  585 

Warrender  v,  Warreuder,        -    631 

Warrington  v.  Pollard,     -    465,  468 

Warwich  v.  Nurn,     -        -        -     292 

Warwick  v.  Foukes,  -        -    227 

V.  Nookes,    -        -        -        -     346 

V.  Richardson,     -        -        -     134 

Washburn  v.  Franklin,     -        -    674 

V.  Prescott,  ...    265 

Washington  v.  Planters'  Bank,     705 

Washington  Bank  v.  Prescott,    406, 

407 

V.  Shurtleff,         -        -        -     620 

Washington  Ice  Co.  v.  Webster,  795, 

796,  801 
Water  Co.  v.  Chambers,    -        -     191 
Waterburv  v.  Grab.am,      -        -     190 
V.  Westervelt,      -        -        -    212 
Waterman  v.   Conn.   R.  R.  Co.,  191 
V.  Clark,       -        -        -        -    275 
V.  Younger,  -        -     399,  409 

Waters  v.  Bristol.      -        -        -     810 
V.  Brown,  150.  151,  227,  228,  230 
V.  Travis,     -        -        -        -    389 
Waterson  v.  Seat,      .        -        -    798 
Watertown  Eccl.  Society's  Ap- 
peal,    -----    807 
Watkins  v.  Carmichael,    -        -    317 
V.  Hill,         -        -        -     373,  374 
V.  Hopkins,  -        -        -    269 

V.  Morgan,  -  -  492,  493,  597 
V.  Parsons,  -  -  -  -  349 
V.  Robb,  -  -  -  -  452 
Watkinson  v.  Inglesby,  428,  431,  432 
V,  Laughton,  -  -  -  617 
Watson  V.  Ambergate  R'y  Co.,  124 
V.  Bauer,  -  -  -  -  801 
V.  Brewster,        -        .        -    343 


TABLE    OF    CASES    CITED. 


Ixxxiii 


Paqea. 

Watson  T.  Christie,   - 

-     2Ai,'2m 

V.  Cresop,    - 

-     3.58,  359 

V.  Hamilton. 

-      14 

V.  Hetherington, 

-    450 

V.  Le  Eow,  - 

-     310 

V.  Lisbon  Bridge, 

-     106 

V.  Orr, 

-     G31 

V.  Owens,     - 

V.  Plio3nix  Bank, 

-    497 

V.  Santa  Fe,  etc.  R.  R.  Co.,  819 
Watt  V.  Hocli,  -  -  -  582,  707 
Watters  v.  Smith,  -  -  -  430 
Watterson  v.  Alleghany,  etc.  R. 

R.  Co.,  -        -  "     -        -     111 

Watts  V.  Garcia,        .        _        .    (57,5 

V.  Slieppard,        -        -     525,  528 

V.  Watts,      -        -        -        -    493 

AVaj-ne  v.  Langley,   -        -        -    430 

Weakly  y.  Rogers,     -        -        -    824 

Weather  y.  Ray.        -        -        -    204 

Weatherbee  y.  Green,       -     165,  166 

Weaver  v.  Toogood,  -        -        -     310 

AVebb  v.  Bumpass,     -        -        -    350 

V.  Dickinson,       -     398,  399,  419 

V.  Goldsmith,       -        -        -    428 

y.  Pond,       -        -        -        -     134 

V.  Rome,  etc.  R.  R.  Co..     -      26 

AVebber  y.  Nichols,    -        -        -    142 

Webby  y.  Drake,       -        -        -    428 

Weber  v.  Morris,       -        -        -    243 

AVebster  y.  Pierce,     -      322,  465,  468 

V.  Stadden,  -        -     374,  375 

y.  Taslit,      -        -        -        -     131 

y.  Wyser,     -        -        -     426,  429 

AVeddington  y.   Boston   Elastic 

Fabric  Co.,  -        -        -        -    374 

AVeed  v.  MiUer.  -        -        -    344 

y.  Panama  R.  R.  Co.,  -     753 

AA^eedsport  Bank  y.  Park  Bank,    349 

AVeeks  v.  Hasty,        -        -        -    588 

y.  Little,       -        -        -        -    5()5 

AVehle  y.  Butler,        -      215,  242,  629 

y.  Havilon,  -        -        -    242 

Wehrlin  v.  Schmutz,         -        -    374 

AA^'ehrum  v.  Kalm,     -        -        .    430 

Weil  y.  Silverstone,  -        -        -    164 

Weisen  v.  King,         ...    554 

AVelch  y.  Durand,      -        -     721,742 

y.  Piercy,     -        -        -       47.  770 

y.  AVadsworth,    -        -     65.S,  674 

V.  AVare,        -       72,  158.  198,  735 

AVeld  V.  Bartlett,       -        -     246,  248 

V.  Nicliols,  -        -        -        -    432 

Weldey  v.    Fractional    School 

District,  -  -  -  -  279 
AVellington  y.  Downer  K.  O.  Co..  28 
y.  Kelly,  -  -  -  -  387 
y.  Roberts,  -  -  -  -  396 
y.  Segwick,  ,        _        .    164 

V.  Small,  -  -  -  -  51 
Wells  V.  Abernethy,  -        -    616 


Pages. 

Wells  V.  Brown,        -        -        .    617 

V.  Commonwealth,     -        -    761 

y.  Cox.  ....    819 

y.  Girling,    -        -        -    493,  57G 

V.  Jackson,  -        -        -    227 

y.  Padgett,  -        -        -     156 

y.  Porter,     -        -        -        -    570 

y.  Sanger,    -        -        -        -    810 

V.  Smith,      ...        -    477 

Welt  y.  Franklin,       -        -        -    433 

AVemple  y.  Stewart,  -        -    796 

Wendham  v.  AVilliams,     -        -     810 

AA^endit  y.  Ross,  -    399,  417,  419 

AVenman  v.  Moliawk  Ins.  Co.,     538, 

596 
Wentwortli  v.  Goodwin,  -  -  291 
Wentz  y.  De  Rayen,  -        -    358 

AVenuway  y.  Motliershead,  493,  560. 

561 
AA'est  y.  Forest,  -  -  -  71,  159 
y.  Patrick,  -  -  -  -  603 
y.  Piatt,  -  -  -  -  830 
y.  Pritchard,  ...  17a 
V.  Rice,  -  -  -  -  246 
AVest  Boylston  Manuf.  Co.  v. 

Searle,  .        .        .        _    434 

AVest  Branch  Bank  y.  Chester,  532 
V.  Morehead.  -  -  -  400 
West  Chicago  A.  AV.  v.  Sheer.  606 
Westcott  V.  Nims,  -  -  277,  288 
Westerman  y.  Means,  -  -  475 
Western  G.  R.  Co.  v.  Cox,  -  110 
AVestern    Union    Tel.    Co.    v. 

Eyser,       -        -        -        -     721 

V.  Hopkins,  ...    763 

AA''esteryelt  y.  Gregg,         -        -        7 

y.  Smith,      ....     134 

AA^estfall  v.  Braley,     -    322,  364,  365 

y.  Dagan.     -        -        -        -    274 

AVestfield  y.  Mayo.    -      136.  138,  142 

y.  St.  Lawrence  Insurance 

Co.,  .....    790 

Westlake  y.  DeGraw,         -    280,  385 

Weston  y.  Gilmore,  -        -        -    808 

v.  Grand  T.  R'y  Co.,  -        -    100 

Wetherbee  y.  Bennett,     -    786,  794 

y.  Marsh,      -        -        -        -     234 

AVetherby  v.  Mann,  -        -    372,  433 

AVetherell  y.  Joy,       -        -     399,  402 

AVeymoutli  v.  Chicago,  etc.  R. 

R.  Co.,  -        -        -        -     169 

Whalen  y.  St.  Louis,  etc.  R.  R. 

Co.,  -        -        -        -     106,  158 

V.  AA^oodard,        -        -        -    470 

Wharton  y.  Morris,  -        -    447,  455 

y.  AValker,  ...        -     348 

Wheat  V.  Dotson,      -    365.  277,  291 

AVheatley  V.  Abbott,  -        -    i56 

y.  Thorn,     -        -        -        -    ',3d 

Wheaton  y.  Hibbard,        -        -    4o3 

y.  Pike,       -       -    544,  681,  68-1 


Ixxxiv 


TABLE    OF    CASES    CITED. 


Pages. 

Wheeler  v.  Cropsey,  -        -    419 

V.  Guild,      -        -        -        -    388 

V.  Hax-rison,         -        -        -    354 

V.  Haskins,  _        -        -    G15 

V.  House,     -        -        -        -    407 

V,  Knaggs,  -        -        -    347,  454 

V.  Pope,       -        -        -        -    666 

V.  Randall,  -        -        -        -    741 

V.  Woodard,        -        -        -    697 

T.  Worcester,      -        -        -    211 

Wheelock  v.  Pacific,  etc.  Co.,       283 

V.  Tanner,    -        -        -    459,  464 

v.  Wheelwright,         -        -    239 

Whelan  v.  Lynch.     -        -        -    796 

Whetstone  v.  Colly,  -    328,  829 

Whidden  v.  Seelye,  -        -     666 

Whipple  V.  Cumberland  M.  Co.,    12, 

811 

V.  Walpole,  -        -        -    803 

Whisler  v.  Hicks,      -        -        -    290 

Whiston  V.  Stodder,      631,  633,  639 

Whitaker  v.  Hartford,  etc.  R. 

R.  Co.,      -        -        -        -    684 
T.  Salisbury,        -        -        -    220 
Whitbeck  v.  New  York  C.  R.  R. 

Co.,  -  -  -  -  780,  795 
V.  Skinner,  -  -  -  280,  285 
V.  Van  Ness,  -  -  -  371 
Whitcomb  v.  Williams,  -  -  373 
White  V.  Arleth,  -  -  489,  512 
V.  Barley,  -  -  -  -  789 
T.  Brow^n,  -  -  -  -  177 
V.  Cannada,  .  .  _  761 
V.  Concord  R.  R.  Co.,  -  798 
V.  Dingley,  -    220,  440,  476 

V.  Dougherty,  -  -  -  307 
V.  Criffin,  -  -  -  -  12 
T.  Hermann,  -  786,  798,  799 
V.  Howard,  .        _        -    383 

V.  Illis,  -  -  .  -  561 
V.  Jones,  -  -  -  -  376 
V.  Jordan,  -  -  -  -  427 
V.  Lyons,  -  -  -  -  667 
V.  Madison,  -        -        -     142 

V.  Martland,  -  -  -  746 
V.  McNeily,  -  -  -  825 
V.  McNett,  -  -  -  25,  47 
V.  Miller,  -  -  111,  194,  615 
V.  Moseley,  -  -  -  -  96 
V.  N.  W.  Stage  Co.,  -  -  761 
V.  Ni(;holls,  -        -        -        5 

V.  Olive,  -  -  -  -  283 
V.  Parker,  -  -  -  -  434 
V.  Smith,  -  -  -  -  lol 
V.  Sutherland,  -  -  -  277 
V.  Trumbull,  -  -  408,  413 
V.  Walker,  -  -  -  -  .531 
V.  Webb,  -  -  -  207,  210 
V.  Wliite,  -  -  -  623,  803 
White  Deer  Creek  Imp,  Co.  v. 

Sassaman,   -        -        -        -    795 


Pctocs* 
Whitehall  Transp.   Co.  v.  N.  J. 

Steamboat  Co.,   -        -        -  630 

Whitehead  y.  Kennedy,  -        -  813 

Whitehouse  y.  Fellows,    -        -  199 

Whiteley  y.  Moseley,         -        -  339 

Whitesell  y.  Forehand.     -        -  174 

Whitfield  y.  S.  E.  R'y  Co.,        -  750 

y.  Westbrook,     -        -        -  475 

y.  Whitfield,        -        -        -  801 

Whiting  y.  Street,     -        -        -  388 

Whitlock  y.  Castro,  -        -        -  633 

y.  Crew,      -        -        -    594,  595 

^\^litman  y.  Boston,  etc.  R.  R. 

Co.,      -        -        -        -    786,  798 

Whitmore  v.  Bischofl,      -        -  199 

y.  Bowinan,         _        -        -  795 

V.  Murdock,        -    399,  405.  406 

Whitney  y.  Allaire,  -        -        -  278 

y.  Beckford,        .        -        -  20 

V.  Ciiicago  iS;  N.  W.  R"y  Co.,  629 

V.  Hitchcock,      -        -        -  741 

y.  Meyers,   -        -        -    279,  2«5 

V.  Taylor,     -        -        -        -  803 

V.  Thacher,          -        -        -  796 

Whittier  y.  Franklin,        -        -  788 

y.  Wright.  -        -        -    383,  383 

Whittington  v.  Roberts,  -        -  376 

Wicklifte  v.  Clay,      -        -        -  594 

Wickolf  y.  Davis,      -        -        -  303 

Wight  y.  Shuck,     493,  494,  568,  576, 

577 

Wiging  V.  Tudor,      -        -    435,  436 

Wilber  y.  Johnson,  -        -        -  156 

Wilbur  y.  Hubbard,  -        -        -  215 

Wilcas  y.  King,          .        -        -  506 

Wilcox  y.  Fairhaven  Bank,  381,  423 

y.  Howland.         -        -        -  531 

V,  Hunt,       -        -        -        -  631 

y.  Pluuimer,        -        -        -  13 

y.  Reynolds,         .        -        -  339 

Wilday  v'  Morrison,       493,  576,  580 

Wilde  y.  Crow,  -        -        -        -  763 

y.  Jenkins,  -        -        -        -  431 

v.  Joel,         -        -        -        -  143 

Wilder  y.  Boynton,  -        -        -  279 

y.  Seeley,     -        -      460,  462,  465 

Wildermau  y.  Sandusky,          -  810 

Wildman  v.  Radenaker,    -        -  471 

Wilkei-son  v.  Daniels,     493,  560,  561 

Wilkes  y.  Hungerford  Market 

Co., 6 

Wilkm  y.  Brown,      -        -        -  437 

Wilkins  y.  Butterman,      -        -  317 

y.  Gilmore,           -        -        -  811 

Wilkinson  v.  Byers,  -        -        -  430 

y.  Ferre,      -        -        -        -  283 

V.  Linde,      -        -        -        -  435 

\.  Stewart,  -        -        -        -  373 

Willard  v.  Harvey,   -        -        -  471 

v.  Rice,        -        -        -     163,  164 

y.  Sperry,    -        -        -        -  179 


TAIJLi: 

OF    CASES    CITED. 

ixxxv 

Pc 

iges. 

Pages. 

VVillard  v.  Stevens, 

. 

- 

- 

"812 

Willis  V.  Dunn, 

- 

-    355 

Williams,  Ex  parte, 

- 

. 

- 

586 

V.  Forest,     - 

- 

-    230 

Williams  v.  Allison 

- 

- 

160 

V.  Quimby, 

- 

-    788 

V,  American  Bank, 

_ 

- 

602 

Wills  V.  Allison, 

- 

-    454 

V.  Anderson, 

_ 

. 

. 

131 

V.  Brown,    - 

- 

-    582 

V.  Baker,     - 

. 

- 

- 

550 

V.  Garland, 

- 

-    819 

V.  Brown,    - 

. 

- 

- 

799 

Wilison  V.  McEvoy,  - 

- 

-     142 

V.  Campbell, 

- 

- 

. 

339 

Wilmot  V.  Hurd, 

- 

-    291 

V.  Cawley,  - 

- 

. 

- 

233 

V.  Smith,      - 

- 

449,  450 

V.  Chicago  Coal  Co. 

,131 

,150 

,238 

Wilson  V.  Apple, 

- 

233,  235 

V.  Craig, 

- 

- 

583, 

618 

V.  Baltimore,  etc.  . 

Association,  7 

V.  Crary, 

- 

- 

- 

354 

V.  Berryman, 

- 

-     804 

V.  Currie,     - 

- 

- 

- 

721 

V.  Burgess,  - 

- 

-     291 

V.  DeCastro, 

. 

- 

- 

440 

V.  Clarke,     - 

- 

-    759 

V,  Esting,     - 

- 

- 

- 

15 

V.  Coupland, 

- 

-    348 

V.  Evans, 

_ 

. 

311, 

,  312 

V.  Darwin, 

- 

-     775 

V.  Fitzhugh, 

- 

- 

- 

643 

V.  Dean,         -    493 

,  494, 

,  568,  576 

V.  Frith, 

- 

- 

- 

318 

V.  Fitch,       - 

- 

-    234 

V.  Grant, 

. 

. 

- 

60 

V.  General  Iron  S. 

Co., 

-      85 

V.Griffith,  - 

. 

_ 

- 

252 

V.  Goodwin, 

- 

-    397 

V.  Headley, 

- 

- 

- 

403 

V.  Hardesty, 

- 

562,  674 

V.  Hill, 

- 

- 

- 

66 

V.  Holden,    - 

- 

-    797 

V.  Houghtaliug, 

403, 

417. 

421, 

V.  Johnson, 

_ 

-    277 

422, 

677. 

689 

V.  Keeling,  - 

- 

-    471 

V.  Lang-ford, 

- 

- 

- 

427 

V.  King, 

- 

-    550 

V.  McFaU,    - 

- 

- 

- 

822 

V,  Lane, 

- 

-     163 

V.  Meeker,    - 

- 

- 

. 

494 

V.  Lazier, 

- 

-    632 

V.  Miller, 

- 

- 

- 

279 

V.  Marsh, 

- 

-    550 

V.  Miner, 

- 

- 

- 

777 

V.  McClean, 

- 

-    803 

V,  Minor, 

- 

- 

- 

233 

V.  Middleton, 

- 

-     738 

V.  Moseley,  - 

- 

. 

- 

322 

V.  Morgan,  - 

325, 

,  328,  454 

V.  ]\Ioyston, 

- 

- 

15, 

252 

V.  Morrow, 

- 

-    429 

V.  elephant, 

- 

- 

- 

134 

V.  N.  P.  R.  R.  Co., 

- 

-      63 

V.  Reynolds, 

- 

- 

- 

t   t 

V.  Newport  Dock  Co., 

-      33 

V.  Eoser, 

- 

- 

447, 

454 

V.  Wagar,    - 

- 

-     160 

V.  Schmidt, 

- 

- 

- 

287 

V.  Wallace, 

- 

-    204 

V.  Sheldon,  - 

- 

- 

211, 

212 

V.  AVilson,    - 

- 

357.  397 

V.  Sherman, 

- 

- 

538. 

596 

V.  Young.    - 

198, 

230,  746 

V.  Smith, 

- 

671, 

,  709. 

711 

Winans  v.  Denman,  - 

. 

-    211 

V.  Stanton, - 

- 

- 

- 

432 

V.  Horton.    - 

. 

-    442 

V.  Starr, 

- 

- 

- 

376 

Winch  V.  Mutual  B.  I. 

Co., 

-    598 

V.  Storrs, 

- 

- 

- 

622 

V.  Purdoii,  - 

. 

-     533 

V.  Tappau,  - 

- 

- 

- 

782 

Winchester  v.  Craig. 

- 

-     169 

V.  Vance,     - 

. 

- 

. 

490 

V.  Osborn,    - 

. 

5 

V.  Yanderbilt, 

19, 

lO.j, 

155, 

156, 

Winder  v.  Caldwell, 

- 

279,  292 

158 

V.  Deffendeiffer, 

. 

-    589 

V.  Wade, 

- 

- 

- 

635 

Winale  v,  Andrews,  - 

. 

-    607 

V.  Walker,  - 

- 

- 

- 

397 

Windsor  V.  Kennedy, 

. 

-    402 

Williamson  v.  Barn 

ett, 

- 

- 

24 

Wing  V.  Davis,  - 

_ 

444,  445 

V.  Broughton, 

- 

- 

- 

600 

Wingate  v.  Smith,     - 

. 

-     164 

V.  Cole, 

- 

- 

- 

404 

V.  Wild  linger. 

- 

-     359 

V.  Dillon, 

- 

- 

- 

796 

Wing  Chang  v.  Mayor 

,  etc., 

,  152,  155 

V.  JiTcGinnis, 

- 

- 

440, 

441 

Winn  V.  Peckham,    - 

_ 

-    745 

V.  Walker,  - 

- 

- 

- 

339 

V.  Young,     - 

. 

541,  781 

V.  Williamson, 

- 

- 

140, 

586 

Y\'iiine  v.  Kelly, 

. 

-      83 

Willie  V.  Bird,    - 

- 

- 

- 

252 

Winningham  v.  Redd 

ing. 

-     704 

Willing  V.  Swazey, 

- 

- 

- 

805 

V/inship  v.  Bass, 

-    357 

Williugs  V.  Consequa, 

- 

617, 

631 

Wiuslow  V.  Draper, 

- 

-    807 

Willoughby  v.  Backhouse, 

. 

7 

V.  Hardin,    - 

. 

-    376 

V.  Thomas.  - 

- 

_ 

. 

177 

V.  Hathaway, 

_ 

-    628 

Willis  v.  Cameron, 

- 

- 

- 

661 

AVintere  Ajjpeal, 

- 

5 

Ixxxvi 


TABLE   OF    CASES    CITED. 


Pages. 

Winthrop  v.  Carleton,  633,  638,  663 

V.  Curtis,     -        -        -        -     711 

V.  Pepoon,  -        -        -        -     663 

Wiacoe's  Appeal,        -        .        -     354 

Wise  V.  Faulkner,      -        -        -     339 

V.  Hilton,     -        -        -        -    373 

V.  Shepherd,        -     305,  306,  308 

Wiseman  v.  Lyman,  -        -     373 

Witburger  v.  Randolph,  -    615,  617 

Witherell  v.  Joy,       -        -        -     398 

Withers  v.  Greene,    -     265,  277,  278 

V.  Reynolds,         -        -     177,  203 

Witherow  v.  Briggs,  493,  561,  576, 

580 
Witman  v.  Geisinger,  -  -  023 
Witmoi'e  v.  San  Francisco,  -  200 
Woburn  v.  Henshaw,  -  -  137 
Wolcott  V.  Canfield,  -        -    208 

V.  Hall,         -        -        -        -     232 
V.  Mount,  83.  Ill,  112,  130,  176. 

194 
Wolf  V.  St.  Louis,  etc.  Co.,      -     152 
V.  Walter.    -        -        -        -    387 
Wolf  Cr.  Diamond  Coal  Co.  v, 

Schultz,       -        -        -        -    505 

Wolff  V.  Cohen,         -        -        -     739 

V.  Oxhohu,  -        -        -    658 

Wolfe  V.  Sharpe,       -        -        -    614 

Wolfson  V.  Evster,    -        -        -    809 

Wood  V.  BodWell,     -        -        -    373 

V.  BuUens,  .        _        .    454 

V.  Fales,       -        -        -        -     164 

V.  Fithian,  -        -        -        -    211 

V.  Fowler,    -        -        -        -    278 

V.  Hickox,  -        -        -    615,  018 

V.  Hitchcock,  459,  460,  461,  462 

V.  Kennedy.         -     658,  673,  674 

V.  Lake,        -        -        -        -     403 

V.  Lemon,    -        -        -        -    775 

V.  M.  S.  L.  &  T.  Co.,  -        -    465 

V.  Mahurin,  -        -        .    447 

V.  Merritt,  -        -        -        -    315 

V,  Morehead,        -        -        -     169 

V.  Morgan,  -        -        -        -    773 

V.  Robbins,  -    588.  022,  638 

V.  Roberts,  -        -     426,  428,  430 

V.  Schraeder,       -        -        -    376 

V.  Smith,      -        -      582,  617,  618 

V.  Torrv,      -        -        -        -     350 

V.  Wand,     -        -        -         11,  13 

V.  Watson,  -        -        -        -    343 

V,  Williamsburgh,      -        -    209 

V.  Winnick,         -        -        -    670 

Woodbridge  v.  Bropley,   -        -    496 

Woodbury  v.  Jones,  -     132,  133 

Woodfolk  V.  McDowell,    -        -     384 

Woodluill  V.  Wagner,       -        -    342 

Woodmansie  v.  Logan,     -        -        4 

Woodruir  V.  Cork,    -        -     761,  770 

V.  Richard.son,     .        -        -    8O9 

V.  Sruggs,   -        -        -     670,  674 


Pages. 

Woodruff  V.  Trapnall,     346,  469,  097 

V.  Webb.      -        -     549,  808,  809 

Woods  V.  Schettler,  -        -        -    245 

Woodson  V.  Scott,     -        -        -    811 

Woodward  v.  Hill,    -        -        -    353 

V.  Leavitt,  -        -        -        -    805 

V.  Miles.       -        -        -        -    432 

T.  Woodward,     -        -        -     009 

Woolcott  V.  McFarlan,      -        -    563 

Wooley  V.  Cami)bell,         -        -     164 

Woolfolk  V.  McDowell,    -    437,  429, 

431 
Woolheather  v.  Riseley,  -  -  219 
Wooten  V.  Buclianan,  398,  400,  417 
Work  V.  Bennett,  -  -  -  281 
Workland  v.  Hoffman,  -  -  290 
Workman    v.    Great    Northern 

R'y  Co.,        -        -        -     237,  245 

Worman  v.  Kramer,  -        -    240 

Wormouth  y.  Cramer,       -        -    233 

Wort  V.  Jenkins,        -        -        -    731 

Worth  V.  Edmonds,  -        -       13,  148 

V.  Hill,        -        -        -     305,  306 

Worthington  v.  Warrington,  -    130 

Worthley  v.  Emerson,      -     415,  420 

Wright  V.  Acres,       -        -        -    430 

V.  Bennett,  -        -        -        -    207 

V.  Chandler,        -        -        -    709 

V.  Crockery  Ware  Co.,  370,    375 

V.  Dounell,  -        .        .     758 

v.  Foster.     -        -        -        -    233 

V.  Grav,       -        -        -        -      71 

V.  Illinoi.s,  etc.  Tel.  Co.,     -    805 

V.  Jacobs,    -        -        -        -     333 

V.  Keith,      -        -        -        -    155 

V.  Laing,      -        -        -    406,  408 

V.  Lathrop.  -        -        -     211 

V.  Lawton,  -        -        -     373 

V.  IMcNeely,         -        -        -    465 

V.  Redd,       -        -        -    447,  448 

V.  Quirk,      -        -        .        -    374 

V.  Spencer,  .        .        _    241 

V.  Storrs,      -        -        -        -     375 

V,  Whiting,  -        -        -     136 

V.  Wilcox,  -        -        -    749,  753 

V.  Wriglit,  -        -        -        -    413 

Wrightup  V.  Chamberlain,       -    141 

Wyandotte,    etc.    Gas    Co.    v. 

Schliefer,     -        -        -    614,  615 

Wyatt  V.  Harrison,  -        -        -        4 

■  V.  Muse,       -        -        -        -    623 

Wycoff  V.  Longhead,        -        -    570 

Wyly  V.  Burnett,       -        -        -     164 

Wyman  v.  American  P.  Co.,  -    133 

V.  Cochran,  -        -        -    493 

V.  Hubbard,         -        -        -    623 

Wynkoop  v.  Cowing,         -        -    456 

Wynn  v.  Brooke,       ...     136 

V.  Hiday,     -        -        -        -    365 

Xenia  Branch  Bank  v.  Lee,  277,  288 


TABLE   OF   CASES    CITED. 


Ixxxvii 


Yandt's  Appeal, 
Yates  V.  Foot,   -        -        - 
V.  New  York,  etc.  R.  R. 
V.  Valentine,        -    373, 
V.  White,     - 
Yatham  v.  Hodgson, 
Yeager  v.  Wallace,    - 
Yeatman  v.  Cullen,  - 
Yeats  V.  Ballentine, 
Yenner  v.  Uummond,  481, 
Yerkam  v.  Tilden,     - 
Yolo  Co.  V.  Sacramento,  - 
Younians  v.  Heartt, 
Young  V.  Adams,     360,  364, 
V.  Brusli,     -        -        - 
V.  Dickey,   -        -        - 
V.  Fluke,      -        -        - 
V.  Godbe,     -        -    536, 
V.  Hargrave, 
V.  Hoover,  -        -        - 
V.  Hosmer,  -       -       - 


Pages. 

Page,9. 

-    677 

Young  V.  Lloyd, 

- 

796 

-    205 

V.  Mertens, 

^ 

- 

721 

Co.,  231 

V.  Pacific  M.  etc. 

Co., 

- 

105 

375,  377 

V.  Pate, 

. 

. 

713 

-    243 

T.  Plumson, 

- 

- 

301 

-      43 

V.  Polack,    - 

- 

- 

536 

-    204 

V.  Spencer,  - 

- 

- 

15 

-    635 

V.  Thompson, 

493, 

554, 

561 

-     160 

V.  White,     - 

. 

- 

506 

491,  513 

Youngs  V.  Stahelin,  - 

371, 

375, 

377 

-  387 

6 

-  417 

Yundt's  Apj)eal, 

- 

-633 

366,  367 

Zabriskie  v.  Smith,   - 

- 

_ 

7 

-     832 

Zeeviu  v.  Cowell, 

. 

- 

700 

-     615 

Zembria,  The,    - 

- 

. 

105 

493,  561 

Zeriiing  v.  Mourer,    - 

_ 

_ 

254 

541,  604 

Ziegler  v.  Powell,      - 

- 

143, 

733 

-    286 

Zink  V.  Langton, 

- 

. 

601 

-    254 

Zogbaum  v.  Parker,  - 

7, 

,  311, 

314 

-    248 

Zuller  V.  Rogers, 

- 

134 

PART   I. 


AN  ELEMENTARY  EXPOSITION  OF  THE  LAW  OF  DAMAGES. 


CHAPTER  I. 

DAIklAGES. 

A  GENERAL  STATEMENT   OP  THE   RIGHT   TO   DAMAGES,  THEIR  LEGAL  QUALITY 

AND  KINDS. 

The  chief  practical  value  of  any  system  of  law  is  in  its  adapt- 
ability and  efficiency  to  secure  the  individual  in  the  full  enjoy- 
ment of  his  rights,  and  in  giving  him  adequate  reUef  when  they 
are  violated.  The  common  law  defines  them,  and  professes  to 
afford  a  remedy  for  every  infraction.  In  the  nature  of  things, 
this  remedy  cannot  consist  in  so  annulling  by  adjudication  an 
act  which  violates  a  right  that  the  injured  party  will  be  restored 
to  enjoy  his  ovm  as  though  there  had  been  no  interruption. 

The  consequences  of  an  act  which  is  an  invasion  of  another's 
right  may  be  arrested ;  and  in  some  cases  a  partial  restoration 
is  practicable.  But  unless  compensation  can  be  made  as  a  sub- 
stitute for  that  to  which  a  party  was  entitled,  and  of  which  he 
has  been  more  or  less  deprived,  there  will  be  an  irreparable  in- 
jury, and  a  corresponding  failure  of  justice.  This  compensation 
the  law  provides  for;  and  it  is  the  principal  object  of  legal 
actions  to  ascertain  what  it  should  be,  and  fix  the  amount ;  and 
then  to  enforce  its  payment.  In  some  actions,  it  is  true,  the 
paramount  purpose  is  to  compel  the  defendant  to  yield  up  pos- 
session of  some  specific  property  which  the  plaintiff  claims  to 
own,  and  incidentally  to  obtain  compensation  for  the  detention, 
as  in  ejectment  and  replevin.  So  in  actions  on  contracts  for  the 
direct  payment  of  money,  the  effect  of  recovery  is  apparently 
to  compel  the  defendant  to  do  the  very  thing  he  agreed  to  do. 


2  DAMAGES. 

and  compensation  for  the  delay  in  the  form  of  interest  is  a 
subordinate  matter. 

Every  infraction  of  a  legal  right,  in  contemplation  of  law, 
causes  injmy ;  this  is  practically  and  legally  an  incontrovertible 
proposition.  If  the  infraction  is  estabhshed,  the  conclusion  of 
damage  inevitably  follows.  This  deduction  is  made,  though  it 
actually  appears,  and  is  recognized  in  the  case,  that  there  was  in 
fact  no  injury,  and  even  a  benefit  conferred.^  This  legal  con- 
clusion of  damage  is  generally  indeterminate  as  to  amount ;  it 
is  that  some  damage  results,  and  then,  if  no  proof  is  given  of 
the  actual  damage,  judgment  can  be  given  only  for  a  minimum 
sum  —  nominal  damages.  In  cases  of  contract  it  may  occur 
that  for  any  breach  a  large  and  determinate  sum  will  become 
due,  for  which  judgment  without  proof  may  be  rendered.  But 
generally,  within  certain  limits,  the  actual  injury  is  to  be  estab- 
lished by  proof  as  matter  of  fact.  In  many  cases  of  tort, 
however,  the  injury  complained  of  is  of  such  a  nature  that 
compensation  cannot  be  awarded  by  any  precise  pecuniary 
standard,  and  there  is  no  legal  measure  of  damages ;  because  the 
injury  does  not  consist  of  any  pecuniary  elements,  or  elements 
of  which  the  value  can  be  measured  or  expressed  in  money.  The 
compensation  Vv^hich  shall  be  allowed  for  an  injury  of  this 
character  is  by  the  common  law  referred  to  the  sound  discretion 
and  dispassionate  judgment  of  a  jury. 

Where  there  is  a  legal  measure  of  damages,  the  jury  must 
determine  the  amount  as  a  fact,  according  to  that  measure ;  for 
otherwise  the  law  which  so  measures  the  compensation  would 
be  of  no  avail ;  and  whether  they  have  done  so  or  not,  in  a 
given  case,  may  be  proximatel}"  seen  by  a  comparison  of  the 
verdict  with  the  evidence.  Courts  of  general  jurisdiction  have 
power  over  verdicts,  and  may  set  them  aside  when  the  jur}^ 
have  been  influenced  by  passion  or  corruption,  or  have  disre- 
garded the  legal  measure  of  compensation.  By  the  course  of 
modern  decisions,  whether  compensation  for  the  actual  injury  in 
actions  for  torts  is  subject  to  legal  measure  or  not,  if  the  injury 
was  done  with  malice,  by  positive  fraud,  oppression  or  wanton 
violence,  such  measure,  if  any,  while  not  entirely  ignored,  ceases 
to  be  a  limit  of  recovery.     The  jur^^  are  at  Mberty,  in  the  exer- 

^  Murphy  v.  Fond  du  Lac,  23  Wis.  3G5. 


DAMAGES.  3 

cise  of  their  judgment,  on  finding  such  mahce  or  other  aggra- 
vation, to  give  additional  damages  as  a  solatium  to  the  party  so 
"wronged,  and  as  a  punishment  to  the  wrongdoer.  The  sums  so 
allowed  by  law  and  found  by  a  jmy  for  tortious  injuries,  or 
losses  from  breach  of  contract,  are  damages,  the  pecuniary 
redress  which  a  successful  plaintiff  obtains  by  legal  action. 
They  are  for  the  most  part  compensation  for  c\\\\  injury  —  ex- 
emplary damages  being  an  exception ;  therefore,  the  law  relating 
to  the  subject  of  damages  is  principally  directed  to  defining 
and  measuring  compensation.  The  cIatI  injury  for  which  dam- 
ages may  be  recovered  must  be  an  injury  which  is  recognized  as 
such  by  the  law ;  it  must  be  an  injury  resulting  from  the  ^dola- 
tion  in  some  form  of  a  legal  right,  ^o  damages  can  be  recov- 
ered for  failure  to  fulfill  a  merely  moral  obhgation,  nor  for  any 
wrong  or  injury  which  consists  in  a  neglect  or  disregard  of  social 
amenities. 

Tlie  right  to  damages,  constituting  a  legal  cause  of  action, 
requires  the  concurrence  of  two  things  ;  that  the  party  claiming 
them  have  suffered  an  injury,  and  that  there  be  some  other  per- 
son who  is  legally  answerable  for  having  caused  it.  If  one 
suffer  an  injury  for  which  no  one  is  liable,  it  gives  no  legal 
claim  for  damages  ;  it  is  dammim  ahsque  injuria  /  so  if  one 
do  a  wrong  from  which  no  legal  injury  ensues,  there  is  no 
legal  cause  of  action ;  it  is  injuria  sine  damno.  That  no  act 
characterized  by  these  negations  is  actionable,  is,  in  the  abstract, 
a  truism.  When  we  say  that  a  person  who  suffers  an  injury 
which  does  not  arise  from  any  other  person's  fault  has  no  cause 
of  action,  we  state  a  self-e'sddent  proposition ;  and  equally  so 
when  we  say  that  no  person  has  a  cause  of  action  against 
another  for  the  latter's  wrong-ful  act  unless  he  is  injured  by  it. 
The  former  precludes  any  action  for  lawful  acts  lavrfulty  done, 
though  some  actual  hurt  or  loss  results  to  some  person  there- 
from. Thus,  for  example,  adjoining  land  owners  have  a  mutual 
right  of  lateral  support  to  the  soil  in  its  natural  state,  but  not 
under  the  pressure  of  buildings.  When  one  has  so  loaded  down 
his  soil  near  the  fine,  the  other  still  has  the  right  to  make  any 
use  he  pleases  of  his  premises,  and  may  excavate  to  the  Mne,  if 
he  does  so  upon  proper  notice  to  the  other ;  and  if  by  such  ex- 
cavation the  stability  of  the  buildings  of  the  adjoining  proprie- 


4  DAMAGES. 

tor  is  endangered,  or  they  are  in  fact  destroyed,  it  is  an  injury 
for  which  no  action  hes.^  The  exercise  of  one's  right  to  dig  in 
his  own  land  may  have  the  effect  of  diverting  an  underground 
stream  of  water  beneficial  to  another,  or  of  draining  his  well, 
but  the  act  of  digging  which  causes  such  diversion,  not  being 
wrongful,  where  it  is  done  without  malice,  there  is  no  redress 
for  the  injury.'^  The  owner  of  property  may  thus  and  other- 
wise, whilst  in  the  reasonable  exercise  of  estabhshed  rights, 
casually  cause  an  injury  which  the  law  will  regard  as  a  misfor- 
tune merely,  and  for  which  the  party  from  whose  act  it  pro- 
ceeds will  be  liable  neither  at  law  nor  in  the  forum  of  conscience. 
In  cases  of  this  nature  a  loss  or  damage  is  indeed  sustained,  but 
it  results  from  an  act  done  by  another  free  and  responsible 
being  which  is  neither  unjust  nor  illegal.^  The  prosecution  in 
good  faith  of  a  groundless  action  may  give  the  defendant  great 
annoyance,  and  cause  him  loss  of  time  and  expense ;  but  the 
plaintiff  in  such  cases  is  exercising  a  legal  right,  and  the  defendant 
is  entitled  to  no  compensation  for  the  injury  he  suffers  beyond 
the  costs  which  may  be  taxed  in  his  favor.*  Every  man  is  enti- 
tled to  come  into  a  court  of  justice,  and  claim  what  he  deems  to 
be  his  right ;  if  he  fails  he  shall  be  amerced  (according  to  the 
old  principle)  for  his  false  claim ;  and  the  defendant  is  entitled 
to  his  costs ;  and  with  these  he  must  be  content.^  But  if  the  suit 
be  malicious  as  well  as  false  or  groundless,  the  party  bringing  it 
is  punishable  in  an  action  at  law  by  the  party  injm-ed.^  The 
making  of  defamatory  statements,  hona  fide,  in  the  assertion  of 
rights,  or  in  the  performance  of  a  duty,  or  in  fair  criticism  upon 
a  matter  of  public  interest,  though  harsh,  untrue  and  injurious, 
is  also  damnuin  absque  injtit'ia.''     Private  houses  may  be  pulled 

iWyatt  V.  Harrison,  3  B.  &  Ad.  of  Delhi  v.  Youmans,  50  Barb,  316; 

875;  Thurston  v.  Hancock,  13  Mass.  Ellis  v.  Duncan,  11  How.  Pr.  515. 

220;  Panton  v.  Holland,  17  Johns.  ^  gpooj^'s  Max.  151. 

92;  Lasala  V.  Holbrook,  4  Paige,  169;  ^Woodmansie  v.  Logan,  2  N.  J. 

McGuire  v.  Grant,  25  N.  J.  L.  356;  Law,  67;   Canter  v.  The  Am.  &  O. 

Hay  V.  Cohoes  Co.  2  Comst.  159.  Ins.  Co.  3  Pet.  807. 

5  Acton  V.  Blandell,   12  M.  &  W.  ^  Id. ;  Hemy  v.  Dafilho,  14  La.  Ann, 

324;  Chasemore  v.  Richards,  7  H.  L.  48;  Davies  v.  Jenkins,  11  M.  &  W. 

Cas.  349;  2  H.  &  N.  168;  Mosier  v.  745. 

Caldwell,  7  Nev.  363;   Chase  v.  Sil-  "Id. 

verstone,  62  Me.  175;   Greeuleaf  v.  ''Todd  v.  Hawkins,  8  C.  &  P.  88; 

Francis,  18  Pick.  117;  Trustees,  etc.  Huntley  v.  Ward,  6  C.  B.  N.  S.  514; 


DAilAGES.  O 

down  in  the  interest  of  the  public  to  prevent  the  spread  of 
fire,^  and  bulwarks  may  be  raised  on  private  property  as  a 
defense  against  a  public  enemy.  So  owners  of  land  exposed  to 
the  inroads  of  the  sea,  or  commissioners  having  a  statutory- 
power  to  act  for  a  number  of  such  owners,  have  a  right  to  erect 
barriers,  though  they  are  consequentially  prejudicial  to  others.^ 
Owners  of  land  adjoining  streets  are  often  subjected  to  tempo- 
rary inconvenience  while  work  is  being  done  on  such  streets  for 
repair  or  improvement,  or  by  change  of  grade ;  or  by  the  tem- 
porary use  of  the  street  for  deposit  of  building  material,  or  on 
the  dehvery  of  merchandise ;  yet  there  is  no  right  to  compensa- 
tion therefor ;  no  legal  injury  is  recognized.^  The  construction 
of  a  new  way  or  the  discontinuance  of  an  old  one  may  very 
seriously  affect  the  value  of  property;  the  same  may  result 
from  the  removal  of  a  state  capital  or  county  seat ;  but  persons 
suffering  loss  from  such  causes  have  no  legal  remedy.*  A  new 
business  may,  by  competition,  greatly  impair  the  productiveness, 
of  an  old  one,  but  there  is  no  redress  for  the  loss.^  These  in- 
stances will  serve  as  examples  of  da/nnum  ahsque  injuria.^ 

Mackay  v.    Ford,   5  H.   &  N.   792;  Mills  t.    Brooklyn,    32  N.    Y.   480; 

Revis  V.  Smith,  18  C.  B.  126;  Barnes  Rome  v.  Omberg,  28  Ga.  46;   Hovey 

V.  McCrate,  32  Me.  442;  Henderson  v.  Mayo,  43  Me.  322. 

v.  Broomhead,  Com.  Scacc.  4  H.  &  ^Cooley's  Const.   Lim.    384.      See 

N.  569;  "WTiite  v.  Nicholls,  3  How.  "Weeks'  Dam.  Absque  Injuria,  cli.  1. 

266;  Lawson  v.  Hicks,  38  AJa.  279;  ^  j^jag^erson  v.  Short,  3  Abb.  X.  S. 

Calkins  v.  Sumner,  13  Wis.  193;  Al-  154. 

len  V.  Crofoot,  2  Wend.  515;  Lawler  «See    McComber    v.    Nichols,    34 

v.  Earle,  5  Allen,  22.  Mich.  212;  Waffle  v.  Porter,  61  Barb. 

'  The    American    Print    W'ks    v.  130;  Farmer  v.  Lewis,    1   Bush,  66; 

Lawrence,  28  N.  J.  L.  9;  S.  C.  21  id.  Pontiac    v.    Carter,-  33    Mich.    164; 

248;   Surrocco  v.  Geary,  3  Cal.  69;  Mich.  Cent.  R.  R.  Co.  v.  Anderson, 

Russell  V.  Mayor  of  N.  Y.  2  Denio,  20  Mich.  244;  Winters  App.  61  Pa. 

461;  Field  v.  Des  Moines,  39  Iowa,  St.  307;  The  Timcam  Fishing  Co.  v. 

575.  Carter,    61    Pa.   St.   21;    Conger    v. 

2 King  V.  Pagham,  8  B.  &  C.  355.  Weaver,  6  Cal.  548;    Baker  v.  Bos- 

2  Reading  v.   Keppleman,   61  Pa.  ton,  12  Pick.  183;  Winchester  v.  Os- 

St.  233;  Griggs  v.  Foote,  4  AUen,  195;  born,  62  Barb.  337;  Ellis  v.  Duncan, 

Benjamin  v.  Wheeler,  8  Gray,  409;  11  How.  Pr.  515;  Gould  t.  Hudson 

Green   v.    Reading,    9    Watts,    382;  R.  R.  R.  Co.  2  Seld.  522;  Benedict  v. 

O'Connor  v,  Pittsbm-gh,  18  Pa.  St.  Grit,  3  Barb.  459;  Rood  v.  The  N.  Y. 

187;  Macey  V.  City,  17  Ind.  267;  Terre  etc.  R.  R.  Co.  18  Barb.  80;  Tyson  v. 

Haute  V.  Turner,  36  Ind.  522;  Rad-  Commissioners,    28    Md.    510;    The 

cliffe  T.  Mayor,  etc,  4  Comst.   195;  Tonawanda  R.  R.  Co.  v,  Munger,  5 


6 


DAMAGES. 


The  futility  of  cases  of  wrong  witJiout  injury  is  illustrated 
by  cases  in  which  damages  are  the  gist  of  the  action  and  none 
are  shown.^ 

The  law  gives  no  private  remedy  for  anj^thing  but  a  private 
wrong.^  A  pubhc  wrong,  however,  and  which  may  be  the  sub- 
ject of  prosecution  as  such,  may  also  have  the  nature  and  con- 
sequences of  a  private  wrong,  and  be  actionable  as  such,  in 
respect  of  some  particular  or  distinct  injury  to  the  person  com- 
plaining, different  in  Idnd  or  degree  from  that  which  the  public 
at  large  suffer.^ 


Denio,  255;  Gardner  v.  Heartt,  2 
Barb,  165;  Radcliflfe  v.  The  Mayor, 
etc.  4  N.  Y.  195;  Botsford  v.  Wilson, 
75  ni.  132;  MitcheU  v.  Harmony,  13 
How.  135;  Cleveland,  etc.  R.  R.  Co. 
V.  Spar,  56  Pa.  St.  325;  Frankford, 
etc.  Co.  V.  R.  R.  Co.  54  Pa.  St.  345; 
Snyder  v.  Penn.  R.  R.  Co.  55  Pa.  St. 
340;  HoUister  v.  Union  Co.  9  Conn. 
436;  RunneUs  v.  BuUen,  2  N.  H.  532. 
'  Ford  V.  Smith,  1  Wend.  48;  Badeau 
V.  Mead,  14  Barb.  328;  Kimball  v. 
Connolly,  42  N.  Y.  57;  Hutchins  t. 
Hutchins,  7  Hill,  104;  Pollard  v. 
Lyon,  91  U.  S.  225;  The  Knicker- 
bocker Life  Lis.  Co.  v.  Eccles,  42 
How.  Pr.  201;  Bissell  v.  Elmore,  65 
Barb.  627;  Kimball  v.  Leroy,  33 
How.  Pr.  237;  Covert  v.  Gray,  34 
How.  Pr.  450;  Kimball  v.  Stone,  1 
Seld.  14;  Bailey  v.  Dean,  5  Barb.  277; 
Swan  V.  Tappan,  5  Cush.  104;  Anony- 
mous, 60  N.  Y.  262;  Dung  v.  Parker, 
52  N.  Y.  494;  Cook  v.  Cook,  100 
Mass.  194;  Allen  v.  Addington,  7 
Wend.  9;  Millard  v.  Jenkins,  9  Wend. 
298;  Butler  v.  Kent,  19  Johns.  389; 
Clark  V.  Chetwood,  5  Kans.  141; 
Commercial  Bank  v.  Ten  Eyck,  48 
N.  Y.  305;  McGee  v.  Raen,  4  Abb.  8; 
Franklin  v.  Smith,  21  Wend.  624; 
Maye  V.  Walter,  64  Pa.  St.  283;  Burch 
V.  Benton,  26  Mo.  153;  Speaker  v. 
McKenzie,  26  Mo.  255. 

2  3  Black.  Com.  219. 

8  Rose  V.   Miles,  4  M.   &  S.   101; 


Greasley  v.  Codling,  3  Bing.  263; 
The  Maj^or,  etc.  v.  Henly,  1  Bing. 
N.  C.  222;  Goldthorpe  v.  Hardman, 
13  M.  &  Y\^  377;  Wilkes  v.  Hunger- 
ford  Market  Co.  2  Bing.  N.  C.  281; 
Crommelin.  v.  Coxe,  30  Ala.  318; 
Lansing  v.  Wiswell,  5  Denio,  218; 
Hay  V.  Cohoes  Co.  3  Barb.  42;  Lans- 
ing V.  Smith,  8  Cow.  140;  S.  C.  4 
Wend.  9;  Pierce  v.  Dart,  7  Cow.  609; 
MiUs  V.  Hall,  9  W^end.  315;  The 
Mayor  v.  Furze,  3  Hill,  292;  Myers 
V.  Malcolm,  6  Hill,  393;  Gates  v. 
Blincoe,  3  Dana,  158;  Yolo  Co.  v. 
Sacramento,  36  Cal.  193;  Sliutto 
V.  N.  P.  I.  Co.  50  Cal.  592;  Cole 
V.  Sprowle,  35  Me.  161;  Baxter  v. 
Wenooski  Co.  23  Vt.  114;  Seeley  v. 
Bishop,  19  Conn.  128;  Barden  v. 
Crocker,  10  Mass.  388;  Stetson  v.  Fax- 
on, 19  Pick.  147;  Francis  v.  SchoeU- 
kopf,  53  N.  Y.  152;  Venard  v.  Cross, 
8  Kans.  248;  Hughes  v.  Heiser,  1 
Binn.  463;  Pittsburgh  v.  Scott,  1  Pa. 
St.  309;  Runyon  v.  Bordine,  14  N.  J. 
L.  472;  Hatch  v.  Vt.  etc.R.  R.  Co. 
28  Vt.  142;  Brown  v.  Watson,  47  Me. 
161;  Braning  v.  New  Orleans,  etc. 
Co.  12  La.  Ann.  541;  Clark  v.  Peck- 
ham,  10  R.  I.  35;  Gordon  v.  Baxter, 
74  N.  C.  470;  Dudley  v.  Kennedy,  63 
Me.  465;  Hamilton  v.  Mayor,  etc.  52 
Ga.  435;  see  Shubut  v.  St.  Paul,  etc. 
R.  R.  Co.  21  Minn.  502;  Proprietors, 
etc.  V.  Newcomb,  7  Met.  276;  City  of 
Pekin  v.  Brereton,  67  lU.  477. 


DAMAGES.  7 

When  a  cause  of  action  arises,  it  has  a  legal  value  as  a  chose 
in  action ;  it  is  a  species  of  property.^ 

The  right  to  damages  vests  at  once  when  the  injurious  act  is 
done.  Even  where  there  is  no  legal  measure  of  damages,  as  in 
case  of  slander  or  assault,  the  injured  party  has  an  indetermi- 
nate right  to  compensation  the  instant  he  receives  the  injury. 
The  verdict  of  the  jury,  and  the  judgment  of  the  court  thereon, 
do  not  give,  but  only  define  the  right.^  Such  right  when  vested 
is  to  the  injured  part}'^  of  the  nature  of  propert}^,  and  is  protected 
as  property  in  tangible  things  is  protected.  It  cannot  be 
annulled  by  legislation,^  nor  otherwise  extinguished  except  by 
satisfaction,  release  or  the  operation  of  statutes  of  limitation.* 

Trover  will  lie  for  its  conversion  ^  or  the  conversion  of  paper 
evidence  of  it.®  And  other  actions  will  He  for  breaches  of  duty 
or  contract,  as  well  as  for  other  wrongs  relating  to  it.^ 

Except  when  the  right  of  action  and  to  damages  is  for  a 
personal  tort  or  breach  of  a  marriage  promise,  it  sur^dves  on  the 
death  of  the  injured  party  and  is  assignable.^ 


'  2  Black.  Com.  438. 

2  Id. 

^Cooley  on  Const.  Lim.  449;  Streu- 
bel  V.  Milwaukee,  etc.  R.  R.  Co.  12 
Wis.  67;  Westervelt  v.  Gregg,  12  N. 
Y.  211;  Dash  v.  Van  Kleek,  7  Johns. 
477;  Thornton  v.  Turner,  11  Minn. 
236;  Terrill  v.  Rankin,  2  Bush,  4o3; 
Wilson  V.  Baltimore,  etc.  Asso.  45 
Md.  546;  Griffin  v.  Wilcox,  21  Ind. 
370. 

4  Bowman  v.  Tiel,  23  Wend.  305; 
Allaire  v.  Whitney,  1  Hill,  480;  1 
Comst.  505;  Christianson  v.  Linford, 
3Robt.  215;  Baylis  t.  Usher,  4  Moore 
&  P.  700;  S.  C.  7  Bing.  153;  Wil- 
loughby  V.  Backhouse,  4  Dowl.  & 
Ry.  539;  S.  C.  2  B.  &  C.  821;  Clark 
V.  Meigs,  10  Bosw.  337. 

*Ayres  v.  French,  41  Conn.  151; 
Payne  v.  Elliott,  54  Cal.  341-2. 

« Fullam  V.  aimmings,  16  Vt.  697 
Archer  v.  Williams,  2  C.  &  K.  26 
Comparet  v.  Burr,  5  Blackf.  419 
Hudspeth  v.   Wilson,    2    Dev.    372 


Pierce  v.  Gilson,  9  Vt.  246;   Moody 
V.  Keener,  7  Port.  218. 

■>  Terry  v.  Allis,  20  Wis.  32;  Evans 
V.  Trenton,  24  N.  J.  L.  764;  AUen  v. 
Suydam,  17  Wend.  368;  Walker  t. 
The  Bank  of  State  N.  Y.  9  N.  Y. 
582;  McNair  v.  Burns,  9  Watts,  130; 
Rhinelander  V.  Barron,  17  Johns.  538; 
Rundle  v.  Moore,  3  Johns.  Cas.  36. 

8  Final  v  Backus,  18  Mich.  218; 
Sears  v.  Conover,  3  Keyes,  113;  North 
V.  Turner,  9  S.  &  R.  244;  Johnston 
v.  Bennett,  5  Abb.  N.  S.  331;  Butler 
V.  N.  Y.  etc.  R.  R.  Co.  22  Barb.  110; 
Zabriskie  v.  Smith,  13  N.  Y.  322; 
Haight  V.  Hoyt,  19  N.  Y.  464;  Recht- 
meyer  v.  Remsen,  38  N.  Y.  206;  Peo- 
ple V,  Hudson  R.  R.  R.  Co.  4  Duer, 
74;  Zogbaum  v.  Parker,  66  Barb.  341 
Waldron  v.  Willard,  17  N.  Y.  466 
Grocers'  Nat.  Bank  v.  Clark,  48  Barb 
26;  McKee  v.  Judd,  12  N.  Y.  622 
McDougaU  V.  Wallmg,  48  Barb.  364 
Fried  v.  N.  Y.  C.  R.  R.  Co.  25  How, 
Pr.  285;  Rice  v.  Stone,  1  Allen,  566 


8  DAMAGES. 

The  general  subject  embraces  the  prmciples  and  illustrative 
examples  by  which  aU  legal  causes  of  action  may  be  tested  and 
their  pecuniary  value  measured  or  adjudicated.  By  these  the 
courts  determine,  first,  whether  the  party  complaining  has  suf- 
fered a  legal  injury,  and  how  the  conclusion  that  he  has  shall  be 
expressed  in  damages ;  and  secondly,  they  direct  and  limit  the 
inquh'ies  for  the  ascertainment  of  the  amount  which  shall  be 
recovered  by  way  of  recompense. 

Mansell  v.  Lewis,  4  Hill,  635;  Robin-  Port.  109;  Nettle  v,  Barnett,  8  Port, 

son  V.  Weeks,  6  How.  Pr.  161;  Jor-  181;  Hoyt  v.  Thompson,  5  N.  Y.  347; 

dan  V.  Gillson,  44  N.  H.  424;  Grant  Nash  v,  HamUton,  3  Abb.  35;  The 

V.  Ludlow,  Adm'r,  8  Ohio  St.  1;  Tay-  Brig  Sarah  Ann,  2  Sumn.  211;  Meech 

lor  V.  Galland,  3  G.  Greene,  17;  Fay  v.   Stoner,   19  N.   Y.  26  Linton  v. 

V.  Troy,  etc.  R.  R.  Co.  24  Barb.  382;  Harley,  104  Mass.  853;  see  Barnard 

Smith  V.   N.  Y.  etc.  R.  R.  Co.   28  v.  Hai-rington,  3  Mass.  338. 
Barb.  605;  Blakeney  v.  Blakeney,  6 


XOillXAL   DAMAGES* 


CHAPTER  II. 
NOMINAL  DAMAGES. 

THEIR    NATURE     AND     PURPOSE  —  ILLUSTRATIONS   OF    THE    ABSOLUTE    RIGHT 
TO  THEM  WHEN  A  LEGAL  RIGHT  HAS  BEEN  VIOLATED, 

For  every  actionable  injury  there  is  an  absolute  right  to  dam- 
ages ;  and  the  law  recognizes  such  an  injury  whenever  a  legal 
right  is  \dolated.  Rights  are  legal  when  recognized  and  pro- 
tected by  law.  Every  invasion  of  such  a  right  threatens  the 
right  itself,  and  to  some  extent  impairs  the  possessor's  enjoy- 
ment. The  logical  sequence  of  finding  such  an  invasion  is  the 
legal  sequence, —  a  legal  injury;  and  this  entitles  the  injured 
party  to  compensation.  In  abstract  principle,  the  law  is,  that 
he  is  entitled  to  compensation  in  amount  proportioned  to  the 
injury.  The  extent  of  the  actual  injury,  however,  is  seldom 
matter  of  law ;  and  when  it  is  not,  merely  showing  the  wrong 
or  breach  of  contract  which  constitutes  the  injury,  will  only 
authorize  the  court  to  judicially  declare  that  the  party  injured 
is  entitled  to  some  damages.  If  there  is  no  inquiry  as  to  actual 
damages,  or  none  appear  on  such  incjuiry,  the  legal  implication 
of  damage  remains.  This  requires  some  practical  expression, 
as  the  compensation  for  a  technical  injury ;  therefore,  nominal 
damages  are  given,  as  six  cents,  a  penny,  or  a  farthing ;  a  sum 
of  money  that  can  be  spoken  of,  but  has  no  existence  in  point 
of  quantity.  Yerdicts  and  judgments  for  damages  generally 
specify  a  small  sum  which  may  be  paid.^ 

When  actual  damages  are  assessed  the  nominal  damages  are 
included  and  are  not  added.  Where  a  plaintiff  sued  in  an  in- 
ferior com-t  for  a  debt  of  50?.,  which  was  the  extent  of  its  jmis- 
diction,  and  neither  recovered  nor  sought  to  recover  damages, 
except  for  the  purpose  of   obtaining  costs,  it  was  held  that 

•Beaumont  v.  Greathead,  2  C.  B.  Co.  34  Cal.  586;  Tootle  v.  Clifton,  22 

499;  Ashley  v.  Wliite,  2  Ld.  Raym.  Ohio  St.  247;  Pastorius  v.  Fisher,  1 

938;   Parker  v.  Griswold,   17  Conn.  Rawle,  27;  Hobson  v.  Todd,  4  Tenn 

303;  Ripka  v.  Sargent,  7  Watts  &  S.  R.  71;  Clifton  v.  Hooper,  6  Q.  B.  468; 

9;  McCouneU  v.  Kebbe,  33  111.  175;  Foster  v.  Elliott,  33  Iowa,  216. 
Pleasants  v.  North  Beach,  etc.  R.  R. 


10  NOMINAL   DAMAGES. 

nominal  damages  for  this  purpose  did  not  place  the  debt  beyond 
the  jurisdiction.^  Where  judgment  by  default  Avas  taken  on  a 
bond  in  the  penalty  of  $250,  conditioned  to  pay  $150,  it  was 
held  that  nominal  damages  could  not  be  added  to  the  penalty 
for  detention  of  the  debt  to  affect  costs.^ 

The  damages  which  tjie  law  thus  infers  from  the  infraction 
of  a  legal  right  are  absolute ;  they  cannot  be  controverted ;  they 
are  the  necessary  consequent.  The  act  complained  of  may  pro- 
duce no  actual  injury ;  it  may  be  in  fact  beneficial,  by  adding  to 
the  value  of  property  or  by  averting  a  loss  which  would  other- 
wise have  happened,  and  still  it  will  be  equally  true  in  law  and 
in  fact,  that  it  was  in  itself  injurious,  if  Ariolative  of  a  legal 
right.  The  imphed  injury  is  from  that  circumstance ;  and  the 
fact  that  beyond  violating  a  right  it  was  not  detrimental,  or 
was  even  advantageous,  is  immaterial  to  the  legal  quahty  of  the 
act  itself.^ 

A  message  was  furnished  to  a  telegraph  company  for  trans- 
mission, containing  a  dhection  to  purchase  a  specified  quantity 
of  wheat,  dehverable  at  a  stated  time  in  the  future.  The  mes- 
sage, by  negligence  of  the  compan3'''s  servants,  was  not  dehvered. 
The  market  price  of  wheat  advanced  for  two  days,  then  fluctu- 
ated, and  was  less  at  the  day  specified  in  the  message  than  on 
the  day  when  it  should  have  been  delivered ;  so  that  there  was 
not  only  no  damage,  but  the  sender  was  saved  from  the  loss 
which  he  would  have  suffered  if  his  message  had  been  dehvered 

1  Joule  V.  Taylor,  7  Exch.  5S.  am  t.  Hurley,  1  El.  &  BI.  665;  Med- 

2  People  V.  Hallett,  4  Cow.  67.  way  Nav.  Co.  v.  Earl  of  Romney,  9  C. 
s  Murphy  v.  Fond  du  Lac,  23  Wis.      B.  N.  S.  575;  30  L.  J.  C.  P.  336;  Mc- 

365;  Jewett  v.  Whitney,  43  Me.  243;  Cloud  v.  Boulton,  3  U.  Canada,  84 

Cookv.  Halt,  3  Pick,  269;  Bolivar  M.  Smith  v.   Whiting,    100  Mass.   132 

Co.  V.  Neponset  M.  Co.  16  Pick.  246;  McConneU    v.   Kibbee,   33  111.    175 

Stowell  V.   Lincobi,    11   Gray,   434;  Bump  v.  Wight,  14  111.  301;  Parker 

Hathorne  V.  Stinson,  12  Me.  183;  Pol-  v.  Green,  3    Bing.  817;    Grover  v. 

lard  V.  Porter,  3  Gray,  313;  Pond  v.  Shole,  43  Pa.  St.  58;    Delaware  & 

Merrifield,  12  Cush.  181;   Newcomb  Hudson  Canal  Co.  v.  Torrey,  33  Pa. 

V.  Wallace,  112  Mass.  25;  Chamber-  St.  143;  Kirkhamv.  Sharp,  1  Whart. 

lain  V.  Parker,  45  N.  Y.  569;  Mar-  333;  Chapman  v.  The  Thames  M.  Co. 

zetti  V.  Williams,  1  B.  &'  Ad.  415;  13  Conn.  369;    Tyler  v.  Wilkinson, 

Kimel   v.   Kimel,   4    Jones  L.    121;  4    Mason,    397;    Bealy    v.   Shaw,    6 

Warre  v.  Calvert,  7  Ad.  &  El.  143;  East,  208;  Fray  v.  Voules,  1  El.  &  E. 

Embrey  v.  Owen,  6  Exch,  353 ;  North-  839. 


NOMINAL   DAMAGES.  11 

and  acted  upon.  But  there  was  a  neglect  of  duty,  and  an 
infraction  of  the  sender's  right  to  have  care  and  diligence  used 
in  the  sending  and  dehvery  of  his  message  ;  for  that  he  was  en- 
titled to  nominal  damages.^ 

The  plaintiff  and  defendants  were  riparian  proprietors  on  a 
watercourse,  and  had  mills  thereon ;  various  other  mills  belong- 
ing to  third  persons  were  located  on  the  same  stream.  In  case, 
the  plaintiff  complained  that  the  defendants  heated  the  water  of 
the  stream  by  operating  steam  boilers  in  then'  mills,  increas- 
ing the  evaporation  five  per  cent.,  which  was  to  that  extent  an 
abstraction  of  the  water ;  also  that  they  fouled  the  water  of  the 
stream  by  discharging  into  it  soap  suds,  etc.  But  the  pollution 
did  no  actual  damage  to  the  plaintiff,  because  the  T\'ater  was 
already  so  polluted  by  similar  acts  of  other  mill  owners  and  dyers 
above  the  defendants'  mill,  and  defendants'  acts  made  no  practi- 
cal difference ;  that  is,  the  pollution  by  the  defendants  did  not 
make  the  stream  less  apphcable  to  practical  purposes  than  it 
was  before.  It  was  held,  however,  that  the  plaintiff'  received 
damage  in  point  of  law  from  such  pollution.  It  was  an  injury 
to  a  right ;  but  that  the  loss  of  five  per  cent,  would  not  give  a 
cause  of  action  if  such  diminution  arose  from  a  reasonable  use 
of  the  stream.^  Where  a  part  owner  was  expelled  from  a  mill 
property,  and  while  he  was  wrongfully  kept  out  of  possession, 
the  mill,  which  was  old,  was  replaced  by  a  new  one  of  greater 
value,  so  that  when  he  regained  possession  the  property  was 
much  more  valuable,  and  he  was  a  gainer  after  considering  aU 
mterniediate  profits  lost,  he  was  still  held  entitled  to  nommal 
damages.^ 

The  principle  that  for  the  violation  of  every  legal  right,  nom- 
inal damages,  at  least,  will  be  allowed,  apphes  to  all  actions 
whether  for  tort  or  breach  of  contract,  and  whether  the  right 
is  personal  or  relates  to  property. 

The  offer  of  violence  to  him  is  an  assault,  and  the  least  un- 
justifiable touching  of  his  person  a  battery.  Where  a  debtor 
was  arrested  on  a  ca.  sa.,  and  judgment,  after  an  insolvent  dis- 
charge, which  gave  him  immunity  from  arrest,  it  was  held  that 

'  Hibbard  v.  W.  U.   Tel.   Co.   33         2  Wood  v.  Wand,  3  Exch.  748. 
Wis.  558.  3  jewett  v.  Whitney,  43  Me.  343. 


13  NOMINAL   DAMAGES. 

the  party  at  "whose  instance  it  was  issued,  as  well  as  the  attorney 
who  issued  it,  were  hable  for  false  imprisonment,  whether  they 
were  previously  notified  of  the  discharge  or  not.  Want  of 
notice,  it  was  held,  might  reduce  the  damages  to  a  nominal  sum, 
but  could  not  be  allowed  to  excuse  absolutely  a  trespass.^  The 
death  of  a  child  was  caused  by  the  neglect  or  unsldlfulness  of  a 
defendant's  clerk  in  substituting  morphine  for  quinine.  As  the 
child  could  have  brought  an  action  for  the  injury  had  he  sur- 
vived it,  it  was  held  that  a  hability,  under  a  statute  of  New 
York,  existed  in  favor  of  the  administrator ;  and  because  the 
statute  expressly  gave  a  right  of  action,  at  least  nominal  dam- 
ages were  recoverable.^  In  actions  for  libel  and  slander, 
wherever  there  has  been  pubhcation  of  matter  in  itself  libelous 
or  actionable  i^er  se,  the  law  infers  some  damage.^  Every  unau- 
thorized entry  upon  the  land  of  another,  or  unauthorized  inter- 
meddhng  with  his  goods,  is  an  actionable  trespass,  whether 
there  be  actual  injury  or  not ;  and  whether  the  owner  suffer 
much  or  httle,  he  is  entitled  to  a  verdict  for  some  damages.*  In 
an  action  for  fishing  in  the  plaintiff's  several  fishery,  he  was 
held  entitled  to  nominal  damages,  though  the  defendant  took  no 
fish,  and  though  the  declaration  did  not  aUege  that  he  caught 
any.^  One's  right  of  property  is  infringed  by  any  unlawful 
flowage  of  his  land.®  A  riparian  owner  has  a  right  to  the 
natural  flow  of  water  not  increased  or  diminished  in  quantity, 
and  unpolluted  in  quality,  and  for  any  infraction  of  this  right,  at 
least  nominal  damages  may  be  recovered.''    A  fraud  by  which 

^  Deyo  V.  Van  Valkenburgh,  5  Hill,  Hosmer,  66  Barb.  345;  White  v.  Grif- 

242;  see  Flint  v.  Clark,  13  Conn.  361.  fin,  4  Jones  L.  139. 

2Quin  V.  Moore,  15  N.  Y.  432;  Mc-  *  Patrick  v.  Greenway,    1   Saund. 

Intyre  v.  N.  Y.  Cent.  E.  R.  Co.  43  346b,  note. 

Barb.  532;  Ihl  v.  R.  R.  Co.  47  N.  Y.  ^^moskeag  M.  Co.  v.  Goodall,  46 

317.  N.  H.  53;  McCoy  v.  Danley,  20  Pa.  St. 

3  Ashby  V.  White,  1  Salk.  19;  S.  C.  89;  Tootle  v.  Clifton,  22  Ohio  St.  247; 
8  Ld.  Raym.  955;  Flint  v.  Clark,  13  Kemmerrer  v.  Edelman,  23  Pa.  St. 
Conn.  361;  Kelly  v.  Sherlock,  L.  R.  143;  Warren  v.  Dehppes,  33  Up.  Can. 
1  Q.  B.  686.  Q.   B.  59;  Plumlagh  v.  Dawson,   1 

4  Dixon  V.  Clew,  24  Wend.  188;  Gilm.  544;  Pastorius  v.  Fisher,  1 
McAneany  v.  Jewett,  10  AUen,  151;  Rawle,  27;  Whipple  v.  Cumberland 
Carter  v.  Wallace,  2  Tex.  206;  Plum-  M.  Co.  2  Story,  661;  Jones  v.  Han- 
mer  v.  Harbut,  5  Iowa,  308;  Coe  v,  novan,  55  Mo.  462. 

Peacock,  14  Ohio  St.  187;  Pierce  v.         '  Newhall  v,  Gilson,  8  Cush.  595: 


KOamSTAL   DAMAGES. 


13 


one  is  drawn  into  a  contract,  is  an  injury  actionable  ])er  se} 
Actnal  damage  is  not  necessary  to  an  action,  A  violation  of  a 
right  with  the  possibility  of  damage  is  sufficient  ground.^ 

The  failure  to  perform  a  duty  or  contract  is  a  legal  wrong  in- 
dependent of  actual  damage  to  the  party  for  whose  benefit  the 
performance  of  such  duty  or  contract  is  due.^  The  omission  to 
show  actual  damages,  and  the  inference  therefrom  that  none 
have  been  sustained,  do  not  necessarily  render  the  case  trivial. 
The  law  has  regard  for  the  substantial  rights  of  parties,  though 
it  may  overlook  trivial  things.*  When  such  right  is  \iolated,  the 
maxim  de  minimis  non  curat  lex  has  no  application.  The  court 
will  add  nominal  damages  to  the  finding  of  a  jury  when  neces- 
sary to  such  rights,  as  in  the  instance  to  carry  costs.^     So  a 


TiUotson  V.  Smith,  32  N.  H.  90; 
Wadswortli  v.  TiJlotson,  15  Conn. 
366;  Clinton  v.  Myers,  46  N.  Y.  511; 
Halsman  v.  Boiling  Springs,  14  N.  J. 
Eq.  335;  Embrey  v.  Owen,  6  Exch. 
353;  Northam  v.  Hurley,  1  El.  &  Bl. 
665;  Stockfort  Water  Works  Co.  v. 
Potter,  7  H.  &  N.  160;  Tyler  v.  Wil- 
kinson, 4  Mason,  397;  Wood  v.  Wand, 
3  Exch.  748;  Tuthill  v.  Scott,  43  Vt. 
525;  Munroe  v.  Stickney,  48  Me.  462; 
MitcheU  v.  Barry,  26  Up.  Can.  Q.  B. 
416;  Blanchard  v.  Baker,  8  Greenl. 
253;  Steer  v.  Burden,  24  Ala.  130. 

^AUaire  v.  Wliitney,  1  Hill,  484; 
Ledbetter  V.  Morris,  3  Jones  L.  543; 
Pentifex  v.  Rignold,  3  Scott  N.  R. 
390. 

2  Id. 

3  Spafford  v.  Goodell,  3  McLean,  27; 
Runlett  V.  Bell,  5  N.  H.  433;  Hagan 
V.  Riley,  13  Gray,  515;  Pond  v.  Merri- 
field,  12  Cush.  181;  Bagby  v.  Harris,^ 
Ala.  173;  Clinton  v.  Mercer,  3  Murph. 
119;  Conger  v.  Weaver,  20  N.  Y. 
140;  Mecklem  v.  Blake,  22  Wis.  495; 
Freese  v.  Crany,  29  Ind.  525;  Worth 
V.  Edmonds,  52  Barb.  40;  French 
V.  Bent,  43  N.  H.  448;  Johnson 
V.  Stear,  15  C.  B.  N.  S.  330;  Steer  v. 
Crowley,  14  C.  B.  N.  S.  337;  Brown 
V.  Emerson,  18  Mo.  103;  Lafliu  v.  Wil- 


lard,  16  Pick.  64;  Goodnow  v.  Wil- 
lard,  5  Met.  517;  Browner  v.  Davis, 
15  Cal.  9;  Conroy  v.  Flint,  5  Cal.  327; 
Seat  V.  Moreland,  7  Hvimph.  575; 
Bond  V.  Hilton,  2  Jones  L.  149;  Craig 
V.  Chambers,  17  Ohio  St,  254;  Dow 
V.  Humbert,  91  U.  S.  294;  Smith  v. 
Whiting,  100  Mass.  122;  Blot  v.  Bor- 
ceau,  3  N.  Y.  78;  Cawan  v.  Silli- 
man,  3  Dev.  46;  Hickey  v.  Baird,  9 
Mich.  32;  McCarty  v.  Beach,  10  Cal. 
461;  Lawrence  v.  Rice,  12  Met.  535 
Davendorf  v.  Wirt,  43  Barb.  227 
Newcomb  v.  Wallace,  112  Mass.  25 
Chamberlain  v.  Parker,  45  N.  Y.  569 
Wilcox  V.  Executor  of  Plummer,  4 
Pet.  172;  Clark  v.  Smith,  9  Conn. 
379;  Baker  v.  Green,  2Bing.  317;  Pol- 
lard V.  Porter,  3  Gray,  312;  Marcetta 
v.  Williams,  1  B.  &  Ad.  415;  Jordan 
V.  Gallup,  16  Conu.  536;  Cooper  v. 
Wolf,  15  Ohio  St.  523;  Mickles  v. 
Hart,  1  Denio,  548. 

•»  Smith  V.  Gagerty,  4  Barb.  614; 
Hathome  v.  Stinsou,  2 Me.  183;  Stow- 
ell  V.  Lincoln,  11  Gray,  434;  Kunel 
V.  Kimel,  4  Jones  L.  121;  ElicotviUe, 
etc.  Plank  R.  Co.  v.  Buffalo,  etc.  R. 
R.  Co.  20  Barb.  644;  Davenport  v. 
West,  42  Barb.  247. 

*  Von  Shoening  v.  Buchanan,  14 
Abb.  185. 


14  nomhstal  damages. 

judgment  which  should  have  been  given  for  a  plaintiif  for  nom- 
inal damages,  but  "was  rendered  for  the  defendant,  will  be 
reversed,  if  such  damages  will  entitle  the  plaintiff  to  costs ;  ^ 
otherwise  a  judgment  which  is  only  erroneous  for  not  giving  a 
plaintiff  nominal  damages  wiU  not  be  reversed,^  nor  will  a  new 
trial  be  granted.^  A  cause  of  action  may  be  so  intrinsically 
trivial  and  vexatious,  it  would  be  ahnost  a  pardonable  departure 
from  technical  rule  to  apply  that  maxim,  and  direct  a  verdict 
for  the  defendant.  It  was  so  ruled  in  a  Yermont  case.  The 
defendant  as  an  officer  had  attached  certain  hay,  straw,  etc.,  and 
used  a  pitchfork  belonging  to  the  debtor  in  removing  the  same ; 
he  did  no  injury  to  the  fork,  and  after  the  use  returned  it  Avhere 
he  found  it.  The  court  held  there  was  no  Mability.*  It  is  to  be 
observed  that  though  there  was  a  technical  wrong,  by  an  un- 
authorized intermeddhng  witli  anotlier's  property,  there  was  no 
assertion  of  an  adverse  right  and  no  actual  injury.  The  action 
was  not  necessary  for  the  vindication  of  a  right  nor  to  redress  a 
wrong  deserving  compensation.  It  was,  however,  a  case  in 
which,  upon  strict  principles,  nominal  damages  should  have  been 
given ;  for  they  are  always  due  for  the  positive  and  wrongful 
mvasion  of  another's  property.^  Teclmical  rules,  and  rules  as 
to  the  forms  of  proceedings,  must  be  observed,  without  regard 
to  the  consequences  which  may  follow  in  particular  cases ; 
otherwise  the.  stabihty  of  judicial  decisions,  and  the  certainty 
of  the  law,  cannot  be  preserved.^ 

'  Eaton  V.  Lyiiian,  30  Wis.  41 :  see  to  the  resulting  damage.     Pursuing 

Barnett  v.  Luther,  1  Curtis,  434.  the  subject,  Bennett,  J.,  said:  "  If  a 

-  Hickey  t.  Baird,  9  ]\Iich.  33;  Eob-  person  has  a  right  to  vote  at  an  eiec- 

ertson  v.  Gentry,  2  Bibb,  543.  tion,  and  he  is  refused  this  right,  he 

=*Brantinghamv.  Fay,  IJohns.Cas.  may  have  his  action,  even  though 

256;  Jennings  v.  Loring,  5  Md.  250;  the  person  for  whom  he  proposed  to 

see  Watson  v.  Hamilton,  6  Rich.  75.  vote,  should  chance  to  be  elected. 

••Paul  V.  Slason,  23  Vt.  231.  Ashby  v.  White,  3  Lord  Raym.  938. 

5  The  Seneca  Road  Co.  v.  The  Au-  So  if  a  sheriff  neglect  to  return  an 
burn,  etc.  R.  R.  Co.  5  Hill,  175.  execution,  the  creditor    may  have 

6  Clark  V.  Swift,  3  Met.  390,  395.  his  action  for  nominal  damages,  al- 
In  Fullam  v.  Stearns,  30  Vt.  443,  it  tliough  no  damages  appeared  to 
was  said  that  whenever  the  maxim  have  resulted  from  the  neglect.  Kid- 
de  minimis  non  curat  lex  is  applied  der  v.  Barker,  18  Vt.  455.  In  the 
to  take  away  a  right  of  recovery,  it  case  of  Clifton  v.  Hooper,  6  Q.  B. 
has  reference  to  the  injury  and  not  468,  in  an  action  for  not  executing  a 


XOillXAL    DAMAGES. 


15 


ca.  sa.,  the  jury  found  the  defend- 
ant in  default,  but  that  the  plaintiff 
had  sustained  no  damage,  and  still 
judgment  was  given  for  the  plaint- 
iff for  nominal  damages.  Lord  Den- 
man  in  that  case  said :  '  Tliat  when  a 
clear  right  of  a  party  was  invaded, 
in  consequence  of  another's  breach 
of  duty,  he  must  be  entitled  to  an 
action  against  that  party  for  some 
amount,  and  that  there  was  no  au- 
thority to  the  contrary.' 

' '  In  Ashby  v.  White,  3  Ld.  Raym. , 
it  is  said  by  Lord  Holt,  '  that  every 
injury  to  a  right  imports  a  damage 
in  the  nature  of  it,  though  there  be 
no  pecuniary  loss.'  See  also  Barker 
V.  Green,  2  Bing.  317.  The  case  of 
WilUams  v.  Moyston,  4  M.  &  W.  145, 
is  not  in  conflict  with  CUfton  v. 
Hooi^er,  In  that  case,  the  distinc- 
tion between  mesne  and  final  pro- 
cess is  well  taken.  In  the  case  of 
mesne  process,  no  right  of  the  cred- 
itor is  violated  by  an  escape,  unless 
he  is  delayed  in  his  suit  thereby  or 
has  sustained  actual  damage.  The 
creditor,  it  is  said  in  that  case,  sim- 
ply had  the  right  to  have  the  sheriff 
keep  the  prisoners  ready  to  be  re- 
moved at  any  time  the  plaintiff 
might  elect,  by  habeas  corpus,  into 
the  superior  court,  there  to  be 
charged  with  a  declai-ation,  or  to  be 
declared  against  as  in  the  custody 
of  the  sheriff.  The  right  of  the 
plaintiff  was  correlative  to  the  duty 
of  the  sheriff,  and  unless  the  plaint- 
iff was  delayed  in  his  suit  by  reason 
of  the  escape,  no  right  of  his  had 
been  violated;  but  if  delayed,  though 
for  ever  so  short  a  time,  a  right  had 
been  violated,  and  he  has  his  action. 
See  also  Cady  v.  Hunting-ton,  1  N. 
H.  138.  So  in  Young  v.  Spencer,  10 
B.  &  C.  145,  the  action  Avas  by  the 
person  who  had  the  reversionary 
interest  against  a  lessee,  and  the 
couit  refused  to  allow  nominal  dam- 


ages for  a  wrongful  act  of  the  lessee 
which  did  not  injure  the  estate  in 
reversion.  .Here,  also,  no  right  of 
the  reversioner  was  violated.  A 
legal  right  must  be  violated,  and  a 
damage  ensue;  but  actual,  percepti- 
ble damages  are  not  indisi>ensable. 
and  they  wiU  be  presumed  to  follow. 
Embury  v.  Owen,  6  Exch.  353,  372; 
WiUiams  v.  Esting,  4  Pa.  St.  486. 
The  maxim  '  de  minimis  non  curat 
lex '  has  been  ajiplied  to  claims  for 
tithes  where  the  quantity  was  small, 
and  involuntarily  left  upon  the 
ground  in  the  process  of  raking;  yet 
if  there  is  a  fraud,  or  an  intention 
to  deprive  the  i)erson  of  his  right, 
the  maxim  will  not  l^e  applied  to  cut 
off  his  right  of  recovery,  though 
the  quantity  be  small.  And  in 
GlanviUe  v.  Stacy,  6  B.  &  C,  the 
plaintiff  had  a  judgment  on  his  ver- 
dict for  three  shillings.  And  in  the 
Seneca  Railroad  Co.  v.  Auburn,  etc. 
R.  R.  Co.  5  Hill,  175,  it  is  said  the 
maxim  de  minimis,  etc.,  is  never 
applied  to  a  positive  and  wrongful 
invasion  of  another's  property;  and 
I  apprehend  it  may  at  least  be  safe 
to  say  it  should  never  in  such  cases 
be  applied  to  cut  off  a  recovery 
where  the  x)Ositive  and  wrongful  act 
causes  damages  which  can  be  fairly 
valued.  The  damage  done  to  the 
plaintiff's  property  by  cutting  their 
thongs,  which  fastened  the  bands 
together,  though  '  considerably 
wom  and  of  small  value,'  could  be 
estimated,  and  we  cannot  say  that 
he  could  not  recover  them.  In  Paul 
V.  Slason,  22  Vt,  235,  the  jury  were 
charged,  that  if  they  found  that  it 
(the  pitchfork)  was  merely  used  for 
a  portion  of  a  day  in  removing  the 
Ijlaintiff's  property,  there  attached, 
a]id  was  left  where  it  was  found,  so 
that  the  plaintiff  had  it  again, 
and  it  was  not  injured  by  its  use, 
they  were  not   bomid  to  give  tlie 


IG 


NOMINAL   DAMAGES. 


plaintiff  damages  for  sucli  use.  The 
supreme  court,  it  is  true,  affirmed 
this  ruling,  and  applied  the  maxim 
'de  minimis  non  curat  lex'  to  the 
case.  It  may  be  remarked  that  in 
that  case  the  pitchfork  was  used  in 
removing  the  plaintiff's  hay,  which 
had  been  attached,  and  which  was  to 
be  removed  at  his  expense,  and  it 
maj^,  in  one  sense,  be  said  that  the 
fork  was  used  in  the  business  of  the 
plaintiff  and  for  his  benefit,  and 
the  jury  must  have  found  that  the 
plaintiff  had  the  fork  again,  and 
that  it  had  not  been  injured  by  the 
officer  in  removing  the  hay.  We 
apprehend  that  case  does  not  war- 
rant the  charge  of  the  court  in  the 
case  at  bar.  Both  the  injury  and 
the  damage  were  too  insignificant  to 
be  made  the  ground  of  an  action. 
Indeed,  the  jury  must  have  found 
that  there  was  no  actual  damage, 
and  the  court  would  not  imply  a 
damage  from  such  taking,  though 
perhaps  it  might  technically  have 
constituted  a  wrongful  taking  by  the 
officer  though  taken  to  be  used  in 
removing  the  plaintiff's  hay,  and 
for  the  expense  of  which  the  plaint- 
iff was  to  be  charged. 

"  In  The  Seneca  R.  R.  Co.  v.  Au- 
burn, etc.  R.R.Co.,  supra,  Co  wen,  J., 
said:  '  To  warrant  an  action  in  such  a 
case  (of  invasion  of  another's  prop- 
erty), says  a  learned  writer,  '  some 
temporal  damage,  be  it  more  or 
less,  must  actually  have  resulted, 
or  must  he  likely  to  ensue.  The  de- 
gree is  wholly  immaterial;  nor  does 
the  law  upon  every  occasion  require 
distinct  proof  that  an  inconvenience 
has  been  sustained.  For  example, 
if  the  hand  of  A.  touch  tlie  person 
of  B.,  who  shaU  declare  that  pain 
has  or  has  not  ensued  ?  The  only 
mode  to  render  B.  secure  is  to  infer 


that  an  inconvenience  has  actually 
restUted.'  Hamm.  N.  P.  39,  Am.  Ed. 
of  1823.  '  Where  a  new  market  is 
erected  near  an  ancient  one,  the 
owner  of  the  ancient  one  may  have 
an  action;  and  yet  perhaps  the  cattle 
that  would  have  come  to  the  old 
market  might  not  have  been  sold, 
and  so  no  toll  would  have  been 
gained,  and  consequently  there 
would  have  been  no  damage;  but 
there  is  a  possibility  of  damage.' 
2  Ld.  Raym.  948.  In  Ashby  v. 
White,  wherein  Powell,  J.,  laid  down 
this  mle  as  to  the  market,  it  was 
held  finally  by  the  house  of  lords 
that  to  hinder  a  burgess  from  voting 
for  a  member  of  the  house  was  a 
good  ground  of  action.  No  one 
could  say  that  he  had  been  actually 
injured  or  would  be;  so  far  from  it, 
the  hindrance  might  have  benefited 
him.  But  the  franchise  had  been 
violated.  The  owner  of  a  horse 
might  be  benefited  by  a  skillful  rider 
taking  the  horse  from  the  pasture 
and  using  him;  yet  the  law  would 
give  damages,  and,  under  circum- 
stances, very  serious  damages  for 
such  an  act.  The  owner  of  a  fran- 
chise, as  well  as  of  other  property, 
has  a  right  to  exclude  all  persons 
from  doing  anything  by  which  it 
may  possibly  be  injured.  The  mle 
is  necessary  for  the  general  protec- 
tion of  property;  and  a  greater  evil 
could  scarcely  befall  a  country  than 
the  rule  being  frittered  away  or  re- 
laxed in  the  least,  under  the  idea 
that  though  an  exclusive  right  be 
violated,  the  injury  is  trifling,  or  in- 
deed nothing  at  all." 

A  violation  of  right,  with  a  possi- 
bility of  damage,  forms  the  ground 
of  an  action.  Allaire  v.  Whitney,  1 
Hill,  484. 


CONTfiOLLES'G   PKINCIPLE.  17 

CHAPTER  HI. 

COMPENSATION. 

Section  1. 

the  controlling  principle  of  compensatory  damages;  and  the  scope 

OF  LEGAL  RESPONSIBILITY  —  REMOTE  AND  PROXIMATE  CAUSE. 

Actions  at  law  are  mostl}'  broiiglit  to  recover  compensation 
as  damages.  The  law  of  damages  is  principally  that  which  de- 
fines, measui'es  and  enforces  payment  of  compensation ;  other 
damages  are  nominal  or  exceptional.  It  is  the  kind  of  redress 
which  the  law  affords  to  all  persons  whose  rights  have  been  in- 
Taded ;  and  in  the  nature  of  things  they  must  accept  compensa- 
tion by  way  of  reparation.  Therefore  the  principles  which 
underhe  this  remedy  so  necessary  and  so  frequently  invoked, 
and  the  rules  which  govern  in  its  administration,  are  of  the 
^eatest  importance.  The  law  defines  very  precisely  all  personal 
and  property  rights,  that  every  person  may  enjoy  his  own  with 
confidence  and  repose.  "When  they  are  infringed,  the  extent  of 
the  encroachment  is  readily  seen  when  the  facts  appear.  The 
law  defines  the  scope  of  responsibiht}''  with  as  much  precision 
as  the  nature  of  the  subject  wiU.  permit,  and  lays  down  a  uni- 
versal measure  of  recompense  for  civil  injury  which  the  sufferer 
is  entitled  to  receive  or  recover,  and  the  person  who  is  Mable  is 
bound  to  pay,  where  the  injury  has  been  done  with  no  bad 
motive  for  which  the  law  subjects  him  to  punishment. 

This  universal  and  cardinal  j)rincij)le  is,  that  the  jyerson  in- 
jured shall  receive  a  compensation  commensurate  vnth  his  loss  or 
injury,  and  no  more  /  and  it  is  a  right  of  the  person  who  is 
bound  to  pay  this  compensation,  not  to  be  compelled  to  pay 
more,  except  costs.^ 


'  Rockwood  V.  Allen,  7  Mass.  254 
Dexter  v.  Spear,  4  Mason,  115 
Walker  v.  Smith,  1  Wash.  C.  C.  153 
FeiTer  v.  Beale,  1  Ld.  Raym.  693 
Allison  V.  Chandler,  11  Mich.  542 
ITorthrup  v.  McGiU,  27  T^cYi,  234 
Vol.  1  —  2 


Bussey  v.  Donaldson,  4  Ball.  206; 
Griffin  v.  Colver,  16  N.  Y.  494;  MU- 
waukee,  etc.  R.  R.  Co.  v.  Arms,  1 
Otto,  489;  Baker  v.  Drake,  53  N.  Y. 
216;  United  States  v.  Smith,  4  Otto, 
214;  Robinson  v.  Harmon,  1  Ex.  850; 


18  COMPENSATION. 

,  This  principle  is  paramount.  Bj  it  all  rules  on  the  subject  of 
compensatory  damages  are  tested  and  corrected.  They  are  but 
aids  and  means  to  carry  out  this  principle ;  and  when  in  any  in- 
stance they  do  not  contribute  to  this  end,  but  operate  to  give 
less  or  more  than  just  compensation  for  actual  injury,  they  are 
either  abandoned  as  mapplicable,  or  turned  aside  by  an  excep- 
tion. There  are,  however,  upon  certain  subjects,  some  arbitrary 
rules,  or  those  which  have  been  adopted  from  considerations  of 
policy,  ostensibly  on  the  basis  of  compensation,  which  really  faU 
short  of  that  object  in  a  conservative  deference  to  possible  con- 
sequences to  the  party  who  must  respond  to  the  demand.  "With 
these  necessary  or  expedient  exceptions,  the  person  who  has 
broken  his  contract,  or  caused  injury  by  any  tortious  act,  is  ha- 
ble  to  the  other  party  to  the  contract,  or  to  the  sufferer  from 
his  tort,  for  such  damages  as  will  place  the  person  so  injured  m 
as  good  condition  as  though  the  contract  had  been  performed, 
or  the  tort  had  not  been  committed.  It  is  not  meant  by  this 
that  the  party  hable  must  answer  for  all  consequences  which 
may  directly  and  remotely  ensue.  The  latter  are,  beyond  a  certain 
point,  incapable  of  being  traced ;  they  combine  with  results  of 
other  causes,  and  any  attempt  to  follow  and  apportion  them 
would  be  abortive,  and  any  conclusion  of  liabihty  would  rest 
on  conjecture  and  lead  to  great  injustice.  If  men  were  held  to 
such  a  far-reaching  habihty,  they  would  be  timid,  or  reckless ; 
if  it  were  legally  recognized,  it  would  be  fatal  to  aU  activity 
and  enterprise. 

Lemitation  of  liability  to  natueal  ajstd  proximate  conse- 
quences.—  As  before  remarked,  the  law  defines  the  scope  of 
responsibihty  for  consequences ;  bej^ond  that  they  are  supposed 
to  cease,  or  the  injured  party  to  counteract  them  by  preventive 
measures.  The  legal  scope  is  a  reasonable  one ;  in  general,  it 
extends  as  far  as  the  moral  judgment  and  practical  sense  of 
mankind  recognize  responsibihty  in  the  domain  of  morals,  and 
in  those  affairs  of  hfe  which  are  not  referred  to  the  com't  for 
regulation  or  adjustment.     The  law  defines  it  generally  by  the 

Peltz  V.  Eschele,  62  Mo.  171;  Noble     dam  v.  Jenkius,  3  Sandf.  614;  Parker 
V.  Ames  Mamif  g  Co,  113  Mass.  297;     v.  Simonds,  8  Met.  205. 
Buckley  v.  Buckley,  12  Nev.423;  Suy- 


DIRECT   DAMAGES.  19 

principle  which  hmits  the  recovery  of  damages  to  those  which 
naturally  and  proximately  result  from  the  act  complained  of  ; 
or,  in  other  words,  to  those  consequences  of  which  the  act  com- 
plained of  is  the  natural  and  proximate  cause. 

This  hmitation  is  expressed  in  such  general  terms  that  the 
distinction  between  those  damages  which  are  compensable  and 
those  which,  for  being  too  remote,  are  not,  is  not  always  very 
clear.  On  similar  states  of  fact,  different  courts  have  come  to 
diverse  conclusions,  though  equally  acknowledging  the  principle. 
It  is  made  more  specific,  however,  by  rules  of  an  element- 
ary character  fonnulated  under  it ;  and  by  judicial  expositions 
and  illustrations  wliich  impart  to  this  legal  generality  a  more 
precise  and  determinate  import  than  is  suggested  by  its  words ; 
and  it  is  only  by  resort  to  them  that  the  principle  of  this  hmita- 
tion can  be  definitely  understood  or  explained  and  elucidated. 
Damages  which  are  recoverable  may,  therefore,  be  conveniently 
divided  primarily  for  this  purpose  into  two  classes :  first,  direct 
damage ;  and  secondly,  consequential  damages. 

Section  2. 
direct  damages. 

These  include  the  damages  for  all  such  injurious  consequences 
as  proceed  immecUately  from  the  cause  which  is  the  basis  of  the 
action ;  not  merely  the  consequences  wliich  invariably  or  neces- 
sarily result,  and  are  always  provable  under  the  general  allega- 
tion of  damages  in  the  declaration ;  but  also  other  dii'ect  effects 
which  have  in  the  particular  instance  naturally  ensued,  and  must 
be  alleged  specially  to  be  recovered  for.  The  liabihty  of  the 
defendant  for  these,  if  guilty  of  the  cause,  is  clear.  AU  such 
damages,  whether  for  tort  or  breach  of  contract,  are  recover- 
able without  regard  to  the  defendant's  intention  or  motive,  or  any 
previous  actual  contemplation  of  them.  A  defendant  is  conclu- 
sively presumed  to  have  contemplated  the  damages  which  result 
directly  and  necessarily  or  natm'ally  from  his  breach  of  contract ; 
this  Will  be  more  particularly  illustrated  in  another  place ;  ^  and 

'  Hadley  v.  Baxendale,  9  Exch.  165;  Collard  v.  S.  E.  Railway  Co,  7 
341;  Burrill  v.  New  Y.  etc.  Co.  U  H.  &  N.  79;  Williams  v.  Vanderbilt, 
Mich.  34;  Bro^m  v.  Foster,  51  Pa.  St.      28  N.  Y.  24, 


20  COMPENSATION. 

in  cases  of  tort,  his  responsibility  to  this  extent  is  absolute.^  An 
illustration  of  this  rule  is  found  in  a  case  in  Yu^ginia,  where  an 
administrator  sold  a  chattel  ^Yhich  the  intestate  had  in  his  pos- 
session when  he  died,  but  in  truth  belonged  to  another,  and  ap- 
plied the  proceeds  to  the  payment  of  the  debts  of  the  intestate, 
in  due  course  of  administration,  without  any  notice  of  the  right 
or  claim  of  the  owner ;  he  was  held  personally  liable  to  such 
owner  for  the  value  of  the  property .^  A  factor  bought  goods 
for  his  principal  residing  at  W.,  and  by  mistake  sent  them  to  a 
third  person  at  S.,  who  received  them  in  good  faith  and  paid  the 
freight ;  he  was  held  hable  for  the  goods  to  the  owner,  though 
he  was  aEowed  a  deduction  for  the  freight  that  he  had  paid.^ 

Section  3. 
consequential  damages. 

For  probable  consequences  of  tort  —  General  illustrations — Not  necessary 
that  such  consequences  be  certain  to  happen  —  Nor  that  they  may  be 
foreseen  as  they  occur  —  The  efficient  cause  responsible  though  other 
causes  intervene  —  Illustrations  —  For  wilful,  vialicious,  fraudulent  and 
reckless  wrongs,  remoter  consequences  taken  into  account. 

Consequential  damages  are  those  which  the  cause  in  question 
naturally  produced,  but  indirectly.  An  example  of  such  dam- 
ages :  the  defendant  was  liable  for  kiUing  a  mare  ;  the  plaintiff 
suffered  injury  in  the  loss  of  that  animal  to  the  extent  of  her 
value,  but  circumstances  gave  her  an  additional  value  to  him ; 
she  had  an  unweaned  colt,  and  she  was  suclding  the  colt  of 
another  mare  which  had  died.  The  direct  consequence  of  the 
killing  of  the  mare  Avas  her  loss  —  the  necessity  of  employing 
other  means  to  raise  the  colts  v/as  consequential.* 

The  consequential  damages  which  may  be  recovered  are  gov- 
erned by  one  consideration  when  they  are  claimed  for  a  tort, 
and  by  another,  when  they  are  sued  for  as  the  result  of  a  breach 
of  contract.     The  latter  will  be  the  subject  of  the  next  section. 

1  Cogclell  V.  Yett,  1  Cold.  230;  Tally  2G7;   Eten  v.  Luyster,  60  N.  Y.  252; 

T.  Ayres,  3  Sneed,  677;  Bowas  V.  Pio-  Keenan  v.    Cavanagli,   44  Vt.   268; 

neer  Tow  Line,  2  Sawyer,  21 ;  Perley  Little  v.  Boston,  etc.   R.  E.  Co.  66 

V.  Railroad  Co.  98  Mass.  414;  Lane  v.  Me.  239;  Bowas  v.  Pioneer  Tow  Line, 

Atlantic  W'ks,  111  Mass.  136.  2  Sawyer,  21. 

^  Newsum  v.  New  sum,  1  Leigli,  86.  *  Teagarden  v.  Hetfieldj  11  Ind.  522. 

s  Whitney  v.  Beckford,  105  Mass. 


KEMOTE    AND    PEOXIMATE    CAUSE.  21 

Rule  of  consequential  DA:\rAGE3  fok  toets. —  When  the  action 
is  for  a  tort  committed  with  no  bad  motive,  the  damages  which 
the  party  injm^ed  is  entitled  to  recover  are  such  as  will  compen- 
sate such  injury  as  might  reasonably  have  been  expected,  under 
the  particular  circumstances,  to  ensue;  such  as  according  to 
common  experience,  and  the  usual  course  of  events,  might 
reasonably  be  anticipated.^  The  injury  must  proceed  from  and 
be  caused  by  the  wrongful  act  of  the  defendant ;  but  the  causa- 
tion is  not  to  be  tested  metaphysically  or  by  any  occult  princi- 
ples of  science,  but  rather  as  persons  of  ordinary  intelligence 
apprehend  cause  and  effect,  and  see  one  fact  proceed  from 
another.  It  is  stated  in  a  Tennessee  case  that  to  go  through  a 
militia  drill,  in  the  public  squares  and  business  resorts  of  towns 
and  \'iliages,  is  a  misfeasance  ;  that  the  officer  under  whose  com- 
mand it  is  done  is  responsible  for  consequential  damages  ;  that 
if  a  team  hitched  to  a  wagon  and  standing  in  the  usual  place 
for  business,  takes  fright  at  the  exercises,  the  discharge  of  small 
anus,  and  the  "pomp  and  circumstance"  of  mimic  ^oar,  and 
runs  away,  and  one  of  the  horses  thereby  is  Idlled,  the  officer  is 
responsible  for  its  value.^  This  case  is  a  fair  exemplification  of 
the  rule  under  consideration.  Drilling  the  militia  was  lawful, 
but  doing  it  in  an  improper  manner  or  in  an  unsuitable  place 
was  a  legal  ^\'rong  to  any  person  who  in  consequence  thereof 
received  injmy.  In  ordering  it  to  take  place  in  a  public  square, 
the  officer  may  not  have  considered  the  effect  in  frightening 
horses,  but  such  an  effect  was  a  natural  one-;  horses  have  to  be 
trained  to  witness  such  a  spectacle  without  being  frightened ; 
horses  were  to  be  expected  vvdiere  the  drill  was  appointed  to  take 
place,  and  if  one  or  a  team,  with  or  without  a  driver  or  attend- 
ant, got  frightened,  it  would  naturally  run  a^^^ay,  and  in  running 
away  the  usual  coUisions  and  casualties  must  occur.  The  officer 
who  gave  the  command  was  bound  to  consider  all  these  possi- 
bilities, or  rather  these  probabilities.  Giving  the  command 
which  no  subordinate  could  decline  to  obey,  made  the  drill  at 
the  place  appointed  the  act  of  the  officer,  whether  he  was  pres- 
ent or  not ;  the  frightening  of  the  horses  which  ensued  was 
probable  from  their  known  habit,  and  from  their  being  where 

'  Hoadly  v.  Northern  Trausp.  Co.  -  Childress  v.  Yourie,  Meigs,  561. 

115  Mass.  304. 


22  COMPENSATION. 

• 

horses  were  likely  to  be  ;  and  their  breaking  loose  and  running 
off  in  a  state  of  fright,  with  or  without  a  driver,  made  a  suc- 
cession of  the  usual  colhsions  and  casualties  a  natural  sequence. 
Here  were  a  series  of  acts,  but  so  concatenated  that  the  final 
damage  from  killing  of  a  horse  was  the  result,  which  the  officer 
was  bound  to  consider  as  hkely  to  ensue  from  his  misfeasance  ; 
all  the  effects  of  the  drill  were  an  entirety,  and  therefore  pro- 
ceeded naturally  and  proximately  from  his  wrongful  act. 

In  a  Massachusetts  case  this  subject  was  well  illustrated  and 
explained.  The  facts  are  thus  stated  in  the  opinion  :  By  care- 
less driving  the  defendant's  sled  was  caused  to  strike  against  the 
sleigh  of  one  Baker  with  such  violence  as  to  break  it  in  pieces, 
throwing  Baker  out,  frightening  his  horse,  and  causing  the  ani- 
mal to  escape  from  the  control  of  his  driver,  and  to  run  violently 
along  Fremont  street,  round  a  corner  near  by  into  EUot  street, 
where  he  ran  over  the  plaintiff  and  his  sleigh,  breaking  that  in 
pieces  and  dashing  him  on  the  ground.  "  Upon  this  statement," 
says  Foster,  J.,  delivering  the  opinion  of  the  court,  "  indisputably 
the  defendant  would  be  liable  for  the  injmies  received  by  Baker 
and  his  horse  and  sleigh.  Why  is  he  not  also  responsible  for 
the  mischief  done  b}''  Baker's  horse  in  its  flight  ?  If  he  had 
struck  that  animal  with  his  whip,  and  so  made  it  run  away 
would  he  not  be  liable  for  an  injury  hke  the  present  ?  By  the 
fault  and  direct  agency  of  his  servant  the  defendant  started  the 
horse  in  uncontrollable  flight  through  the  streets.  As  a  natm^al 
consequence,  it  was  obviously  probable  that  the  animal  might 
run  over  and  injure  persons  traveling  in  the  vicinity.  Every 
one  can  plainly  see  that  the  accident  to  the  plaintiff"  was  one  very 
likely  to  ensue  from  the  careless  act.  We  are  not,  therefore, 
dealing  with  remote  or  unexpected  consequences,  not  easily  fore- 
seen, nor  ordinarily  hkely  to  occur ;  and  the  plaintiff's  case  falls 
clearly  within  the  rule  already  stated  as  to  the  hability  of  one 
guilty  of  negligence,  for  the  consequential  damages  resulting 
therefrom.  .  .  .  Here  the  defendant  is  alleged  to  have 
been  guilty  of  culpable  negligence.  And  his  liability  depends, 
not  upon  any  contract  or  statute  obligation,  but  upon  the  duty 
of  due  care  which  every  man  owes  to  the  community,  expressed 
by  the  maxim  sic  utere  tito  ut  alienuin  non  Imdas. 


KEMOTE    AND    PEOXIilATE   CAUSE. 


"  Where  a  right  or  duty  is  created  wholly  by  contract,  it  can 
only  be  enforced  between  the  contracting  parties.  But  where 
the  defendant  has  violated  a  law,  it  seems  just  and  reasonable 
that  he  should  be  held  Uable  to  every  person  injured,  whose  injury 
is  the  natural  and  probable  consequence  of  the  misconduct.  In 
our  opinion,  this  is  the  well  established  and  ancient  doctrine 
of  the  common  law ;  and  such  a  habihty  extends  to  consequential 
injuries,  by  whomsoever  sustained,  so  long  as  they  are  of  a 
character  hkely  to  follow,  and  which  might  reasonably  have 
been  anticipated,  as  the  natural  and  probable  result,  under 
ordinary  circumstances,  of  the  wrongful  act.  The  damage  is 
not  too  remote,  if,  according  to  the  usual  experience  of  man- 
kind, the  result  was  to  be  expected.  This  is  not  an  im- 
practicable or  unlimited  sphere  of  accountabihty,  extending 
indefinitely  to  all  possible  contingent  consequences.  An  action 
can  be  maintained  only  where  there  is  shown  to  be,  first, 
a  misfeasance  or  negligence,  in  some  particular,  as  to  which 
there  was  a  duty  towards  the  part}^  injured  or  the  community 
generally ;  and  secondly,  where  it  is  apparent  that  the  harm  to 
the  person  or  property  of  another  which  has  actually  ensued, 
was  reasonably  likely  to  ensue  from  the  act  or  omission  com- 
plained of.     .     .     . 

"  It  is  clear  from  numerous  authorities  that  the  mere  circum- 
stance that  there  have  intervened,  between  the  v,Tongful  cause 
and  the  injurious  consequence,  acts  produced  by  the  voKtion  of 
animals  or  of  human  beings,  does  not  necessarily  make  the  re- 
sult so  remote  that  no  action  can  be  maintained.  The  test  is  to 
be  found,  not  in  the  number  of  intervening  events  or  agents,  but 
in  then'  character,  and  in  the  natm-al  and  probable  connection 
between  the  Avrong  done  and  the  injurious  consequence.  So 
long  as  it  affirmatively  appears  that  the  mischief  is  attributable 
to  the  neghgence,  as  a  result  which  might  reasonably  have  been 
foreseen  as  probable,  the  legal  liabihty  continues. 

"  There  can  be  no  doubt  that  the  negligent  management  of 
horses,  in  the  public  street  of  a  city,  is  so  far  a  culpable  act  that 
any  party  injured  thereby  is  entitled  to  redress.  Whoever 
drives  a  horse  in  a  thoroughfare,  owes  the  duty  of  due  care  to  the 
communit}'-,  or  to  all  persons  whom  his  neghgence  may  expose 


24  COIVIPENSATION. 

to  injury.     l!Tor  is  it  open  to  question  that  tlie  master,  in  sucli  a 
case,  is  responsible  for  the  misconduct  of  his  servant."  ^ 

Miscellaneous  illijstkations. — Where  a  teamster's  wagon  be- 
ing loaded  at  a  depot  was  injured  by  a  train  of  cars,  it  was  held  he 
was  entitled  to  recover  for  damages  done  to  his  wagon,  for  the 
loss  of  the  trip  in  which  he  was  engaged,  and  for  the  loss  of  the 
use  of  the  wagon  until  it  could  be  repaired.^ 

A  similar  measure  is  applied  in  cases  of  coUision  of  boats  ;  a 
reasonable  sum  for  the  damage  the  injured  boat  has  received  ; 
the  expense  of  raising  it,  if  sunk,  and  to  repair  it,  and  to  com- 
pensate for  the  loss  of  the  use  during  the  time  it  is  being 
refitted,  and  interest  on  such  items.^ 

In  an  action  of  trespass,  for  forcibly  invading  a  plantation, 
carrying  olf  some  slaves  and  frightening  others  away,  it  was- 
held  proper  for  the  plaintiff  to  give  in  evidence  the  consequen- 
tial damages  which  resulted  to  his  wood  and  crops  —  to  the 
former  for  want  of  the  assistance  of  the  slaves  to  preserve  it 
from  a  subsequent  flood,  and  to  the  latter,  to  protect  it  against 
trespassing  animals  of  the  neighborhood.'*  The  wrong  included 
leaving  a  plantation  with  growing  crops  and  other  property 
exposed  to  injury  from  any  cause  which  might  arise;  there 
being  no  force  of  laborers  to  meet  any  exigency,  the  wrongdoer 
was  bound  to  take  notice  at  his  peril  of  any  exposure  to  injury 
thus  created  by  flood,  marauding  cattle  or  otherwise ;  and 
whether  the  action  would  he  against  the  owner  of  trespassing 
cattle  or  not,  was  held  immaterial. 

The  owner  of  sheep,  which  had  a  dangerous  disease,  suf- 
fered them  to  trespass  on  another's  land,  and  to  mingle  with 
his  sheep,  to  which  the  disease  was  communicated,  and  many  of 
them  died.  He  was  held  hable,  not  only  for  the  breach  of  the 
close,  but  also  for  the  loss  of  the  sheep  that  died  of  the  disease.^ 

1  Snelling  v.  McDonald,  14  Allen,  Haven,  etc.  Co.  v.  Vanderbilt,  16 
292.  Conn.    420;  Williamson  v.  Barrett, 

2  Shelbyville  L.    B.   R.   R.    Co.  v.      18  How.  U.  S.  101. 

Lewark,  4  Ind.  471.  "  McAfee  v.  Crofiford,  13  How.  U.  S. 

3  Mailier  v.  Express  Prop.  Line,  61  447;  Hobbs  v.  Davis,  30  Ga.  428;  John- 
N.  Y.  313;  Brov/n  v.  Beatty,  35  Upp.  son  v.  Courts,  3  Har.  &  McHen.  510. 
Can.  Q.  B,  828;  Steamboat  Co.  v.  ^  Barnum  v.  Van  Dusen,  16  Conn. 
WhUden,  4  Harr.  (Del.)  228;  The  New  200;  Fnltz  v.  Wycoff,  25  Ind.  321. 


REMOTE    AIS^D    PKOXIIIATE    CAUSE.  i^D 

So,  a  railroad  companj-'s  servant  left  bars  down  between  the 
plaintiff's  field  and  the  railroad  track;  his  horses  escaped 
through  the  bai-s  to  the  railroad  and  were  struck  and  Idlled  by 
the  engine,  and  the  company  were  held  liable.^ 

A  plaintiff's  horses  escaped  into  the  defendant's  close,  by  rea- 
son of  his  not  keeping  his  fence  in  repair,  and  were  there  killed 
by  the  falling  of  a  hay  stack;  and  he  washeld  responsible.- 

The  lessee  of  a  wharf  Avas  guilty  of  negligence  in  not  keep- 
ing it  in  repair ;  he  suffered  the  raihng  to  become  dilapidated, 
and  in  consequence  a  horse  backed  into  the  river  with  a  wagon, 
and  were  lost.  This  loss  was  held  to  be  the  natural  and  proxi- 
mate effect  of  the  noo:li2:ence.^ 

A  gas  company  having  contracted  to  supply  the  plaintiff  with 
a  ser\"ice  pipe  from  their  main  to  the  metre  on  his  premises,  laid 
down  a  defective  pipe,  from  which  the  gas  escaped.  A  workman, 
in  the  employ  of  a  gas  fitter  engaged  by  the  plaintiff  to  lay  down 
the  pipes  leading  from  the  metre  over  his  premises,  negligently 
took  a  lighted  candle  for  the  purpose  of  finding  out  whence  the 
gas  escaped.  An  explosion  took  place,  damaging  the  plaintiff's 
premises,  and  he  brought  an  action  against  the  gas  company, 
and  it  was  held  that  the  damages  were  not  too  remote.* 

A  railroad  company,  by  excavating  in  a  pubho  street  wrong- 
fully, destroyed  the  lateral  support  of  the  soil  to  the  foundation 
of  a  house,  and  thereby  the  plaintiff's  adjoining  house,  depend- 
ing on  the  other  for  support,  was  injured,  and  it  was  held  that 
that  the  company  was  hable  for  the  injury.^ 

It  is  now  apparently  settled  that  a  person  who  negligently 
sets  a  fire  is  not  only  liable  for  the  first  building  consumed,  but  all 
subsequently  destroyed  by  the  same  contmuous  conflagration, 
without  regard  to  the  distance  the  fire  runs  or  the  time  it  is  in 
progress.^ 

1  White  V.  McNutt,  33  N.  Y.  371;  ■'Barrows  v.  March,  etc.  Gas  Co. 
Henley  v.  Neal,  3  Humph.  Ool.  39  L.  J.  Exch.  33;  L.  E.  5  Exch.  67; 

2  Powell  V.  Salisbury,  2  Y.  &  J.  391 ;  Laniien  v.  The  Albany  Gas  L.  Co.  44 
Gilbertson  v.  Eichardson,  5    C.  B.  N.  Y.  459. 

502;  Lawrence  v.  Jenkins,   L.  E.  8  ^  Baltimore,     etc.    E.    E.    Co.    v. 

Q.  B.  274;  Couch  v.  Steel,  3  El.  &  B.  Eeaney,  42  Md.  118. 

402;  Lee  v.  Eiley,  18  C.  B.  N.  S.  722.  « Kellogg  v.  Chicago,  etc.  E.  E.  Co. 

»Eadway  t.  Briggs,  37  N.  Y.  256;  26  Wis.   228;  Hart  v.  Western  E'y 

S.  C.  35  How.  Pr.  422.  Co.  13  Met.  99;  Milwaukee,  etc.  E. 


26  COMPENSATION. 

The  owner  of  a  horse  and  cart  who  leaves  them  unattended 
in  a  piibhc  street  is  liable  for  any  damage  to  children  resorting 
there  and  meddling  with  the  cart  or  horse.^  The  owner  of  a 
loaded  gun,  w^ho  puts  it  into  the  hands  of  a  child,  by  whose  in- 
discretion it  is  discharged,  is  liable  for  the  damage  occasioned 
by  such  discharge.^ 

Leaving  an  iron  truck  with  a  hot  iron  casting  on  it,  in  a  street 
where  children  are  accustomed  to  go,  and  in  a  condition  to  do 
injury  by  shght  interference,  is  neghgence,  which  wiU  be  re- 
garded as  the  proximate  cause  of  any  injury  to  the  child  which 
may  so  happen.^ 

The  defendant's  servant  left  a  truck  standing  beside  a  side- 
walk in  a  pubhc  street,  with  the  shafts  shored  up  by  a  plank  in 
the  usual  way.  Another  truckman  temporarily  left  his  loaded 
truck  directly  opposite  on  the  other  side  of  the  same  street ; 
after  which  a  third  truckman  tried  to  drive  his  truck  between 
the  two  others.  In  attempting  to  do  so  with  due  care,  he  hit  the 
defendant's  truck  in  such  a  manner  as  to  whirl  its  shafts  round 
on  the  sidewaUc,  so  that  they  struck  the  plaintiff,  who  was  walk- 
ing by,  and  broke  her  leg.  For  this  hijury  she  was  allowed  to 
maintain  her  action,  the  only  fault  imputable  to  the  defendant 
being  the  careless  position  in  which  the  truck  was  left  by  his  , 
servant  on  the  street,  which  was  treated  as  the  sole  cause  of 
the  breaking  of  the  plaintiff's  leg;  and  it  was  deemed  suffi- 
ciently proximate  to  render  the  defendant  responsible.*  The 
defendant  was  liable  for  the  act  of  his  servant,  for  he 
was  engaged  in  his  master's  work;  and  it  was  negligence  to 
leave  the  truck  in  the  street  when  not  in  use ;  it  was  considered 
that  the  driver  of  the  truck,  who  was  the  immediate  agent  of 
the  force  which  injured  the  plaintiff,  had  a  right  to  attempt  to 
pass  between  the  two  trucks,  if  he  conducted  himself  with  due 

R.  Co.  V.  Kellogg,  94  U.  S.  469;  Per-  ford,  12  Kan.  354;  Atchison,  etc.  R. 

ley  V.  Eastern  R.   R.  Co.  98  I<Iass.  R.  Co.  v.  Bates,  16  Kan.  2G2. 

414;  Higgins  v.   Dewey,    107  Mass.  ^  Lynch  v.  Nurdin,  1  A.  &  E.  N.  S. 

494;  Tent  v.  The  Toledo,  etc.  R.  R.  29;  Iliedge  v.  Goodwin,  5  C.  &  P.  190. 

Co.  49  111.  349;  Webb  v.  The  Rome,  ^  Dixon  v.  BeU,  5  M.  &  S.  108. 

etc.  R.  R.  Co.  49  N.  Y.  420;   Penn.  s  L^ne  v.  Atlantic  W'ks,  107  Mass. 

R.  R.  Co.  V.  Hope,  80  Pa.  St.  373;  St.  104. 

J.  etc.  R.  R.  Co.  V.  Chase,  11  Kan.  «  Powell  v.  Deveney,  3  Cush.  300. 
47;  Atchison,  etc.  R.  R.  Co.  v.  Stan- 


KEMOTE   AND   TKOXIMATE   CAUSE.  27 

care,  and  exercised  a  sound  discretion  in  determining  wlietlier 
the  attempt  could  be  made  with  safety  to  persons  lawfully 
using  the  street.  And  as  the  jury  found  that  in  the  exercise  of 
such  care,  prudence  and  discretion  he  made  the  attempt  which 
resulted  in  the  injury  sustained  by  the  plaintiff,  the  defend- 
ant was  liable  inasmuch  as  his  truck  was  unla^vfuUy  in  the 
street,  and  that  should  be  regarded  as  the  natural  and  proximate 
cause  of  the  injury.  The  decision  imports  that  a  danger  not 
aj^parent  enough  to  deter  the  driver  from  attempting  to  pass  the 
truck  of  the  defendant,  could  legally  be  apparent  enough  to 
render  the  injury  proximate  to  the  illegal  use  of  the  street  by 
leaving  the  truck  there.  A  man  who  sets  and  keeps  a  fire  on 
his  own  land,  negligently,  is  liable  for  any  injury  done  by  its 
direct  communication  to  his  neighbor's  land,  whether  through 
the  air  or  along  the  ground,  and  whether  or  not  he  might 
reasonably  have  anticipated  the  particular  manner  and  direction 
in  which  it  was  communicated.^ 

The  defendants  moored  their  boats  in  the  channel  and  entrance 
to  the  locks  at  a  dam  upon  a  river,  so  that  the  boats  of  others 
were  stopped  outside,  and  exposed  to  the  current,  then  rapidly 
rising,  until  by  its  force  they  were  carried  over  the  dam  and 
lost,  without  any  fault  of  the  owners.  It  was  held  that  the  de- 
fendants negiigentl}^  or  wantonly  caused  this  injury,  and  were 
Hable  for  it.'~ 

The  plaintiff's  boat  had  anchored  at  a  wharf  when  the  water 
was  low.  The  river  rose  afterwards,  covering  certain  piles  of 
pig  iron,  negligently  left  by  the  defendant  on  the  wharf,  about  a 
foot  above  low  water  mark.  To  avoid  these  piles,  the  boat  was 
compelled  to  back  out  into  the  stream,  ^vhere  she  was  struck  by 
some  floating  body,  stove  and  sunk.  The  defendant  was  held 
liable  for  the  loss  of  the  boat.^ 

The  defendant  broke  and  entered  the  plaintiff's  close,  adja- 
cent to  a  river,  and  carried  away  gravel  from  a  bank,  near  to  a 
dam  across  the  river,  in  consequence  of  which  a  flood  in  the 
river,  three  weeks  afterwards,  swept  away  a  portion  of  the  close 
and  a  cider  mill.  It  was  held  that  the  whole  damage  might  be 
recovered.^ 

» Higgins  T.  Dewey,  107  Mass.  494.         ^  Pittsburgh  v.  Grior,  23  Pa.  St.  54. 
2  Scott  V.  Plunter,  46  Pa.  St.  192.  ^  Dickinson  v.  Boyle,  17  Pick.  78. 


28 


COMPENSATIOlSr. 


A  harbor  company,  which  had  been  in  the  liabit  of  keeping  a 
light  on  the  end  of  one  of  their  piers  to  enable  vessels  to  enter 
the  harbor  at  night  in  safety,  discontinued  the  light  without 
public  notice.  A  vessel  was  afterwards  lost  in  attempting  to 
enter  in  the  absence  of  the  Ught.  It  was  held  that  the  harbor 
company,  for  such  discontinuance  of  the  light  without  notice, 
was  liable  for  the  value  of  the  vessel  lost,  and  also  for  certain 
monej^s,  expended  in  good  faith,  with  a  reasonable  expectation 
of  success,  in  attempting  to  raise  the  vessel.^ 

It  has  already  been  stated  that  though  consequential  damages 
to  be  recovered  must  be  the  natural  and  probable  effect  of  the  act 
complained  of,  yet  it  is  not  requisite  that  the  wrongdoer  should 
be  able  to  anticipate  who  the  sufferer  will  be.  If  his  act  has 
a  tendency  to  injure  some  person  of  the  general  public,  or  many 
persons,  and  finally  does,  in  the  manner  which  was  beforehand 
probable,  cause  such  injury,  it  is  proximate.  This  is  very 
cogently  illustrated  by  the  case  of  a  spring  gun  set  so  as  to  bo 
unwittingly  discharged  by  the  first  corner."'^ 

A  dealer  in  drugs,  for  negligently  bottling  a  poisonous  drug 
and  putting  it  in  market,  labeled  as  a  harmless  medicine,  is 
liable  to  all  persons  who,  without  fault  on  their  part,  are  mjured 
by  using  it,  though  it  may  have  passed  through  many  hiter- 
niediate  sales.^  So,  a  person  Avho,  knowing  another  to  be  a  re- 
tailer of  illuminating  fluids,  and  naphtha  to  be  explosive  and 
dangerous  to  life  for  such  use,  sells  that  article  to  him  to  be 
retailed  to  his  customers  in  his  business,  he  being  ignorant  of  its 
dangerous  properties,  is  Mable  to  any  person,  buying  it  of  such 
retailer,  and  being  injured  by  its  explosion  or  ignition.*     One 

'  Sweeuey  v.  Pt.  Burwell  Harbor  gerous  only  by  being  used  in  conibi- 

Co.  17  Upp.  Can.  C.  P.  574.  nation  with  some  other  substance, 

■^Jay  V.  Whitfield,  4  Biug.  644;  without  any  knowledge  by  the  Ten- 
Bird  V.  Holbrook,  4^Bing.  628.  dor  that  it  is  to  be  used  in  such  com- 

''  Thomas  v.  Winchester,  6  N.  Y.  bination,  does  not  render  hira  liable 

307;  Langredge  v.  Levy,  2  M.  &  W.  to  an  action  by  one  wlio  purcliases 

519;  Norton  v.  Sewall,  106  Mass.  143;  the  article  from  the  original  vendee, 

George  v.  Skivington,  L.R.  5  Exch.  1.  and  wlio  is  injured  while  using  it  in  a 

■*  Wellington  v.  Downer  K.  O.  Co.  dangerous  combination  with  another 

104  Mass.  64;  see  Carter  v.  Towne,  article;  although  by  mistake  the  ar- 

98  Mass.  567;  S.  C.  103  id.  507.  tide  actually  sold  is  different  from 

The    sale    of  an  article  in    itself  that  which  is  intended  to  be  s(5id. 

harndess,  and  which  becomes  dan-  Davidson  v.  Nichols,  11  Allen,  514. 


EEMOTE   AKD   rEOXi:MATE    CAUSE. 


29 


wlio  know'lngly  delivers  an  apparently  harmless  package,  con- 
taining a  dangerous  and  explosive  substance,  to  a  common  car- 
rier for  transportation,  without  giving  him  notice  of  its  contents, 
is  liable  for  damages  caused  by  its  explosion,  while  the  carrier  is 
transporting  it,  in  ignorance  of  its  contents,  with  due  care 
adapted  to  its  apparent  nature.^ 

The  act  of  keeping  a  large  quantity  of  gunpowder  in  a 
wooden  building,  insufficiently  secm^ed,  and  situate  near  other 
buUdings,  thereby  endangering  the  lives  of  persons  in  the 
AHcinity,  will  subject  the  person  so  doing  to  damages  for  injury 
suffered  by  any  person  from  its  explosion,  though  the  fire  which 


Bigelow,  C.  J.,  said:  "  Tliere  being 
no  duty  imposed  on  the  defendants 
towards  the  plaintiff  arising  out  of 
any  contract,  this  action  is  to  be 
maintained,  if  at  all,  by  showing  a 
breach  of  some  duty  or  obligation 
imposed  on  them  by  law.  They  have 
been  guilty  of  no  actionable  careless- 
ness or  negligence,  uuless  it  can  be 
shoAvn  that  they  were  bound  to  use 
some  care  or  caution  on  which  the 
plaintiff  had  a  right  to  rely.  Fail- 
ing to  show  this,  or  to  aver  a  state  of 
facts  from  which  the  law  would 
imply  it,  the  gist  of  this  action, 
which  is  founded  on  alleged  neglect 
and  want  of  due  care,  is  wholly 
wanting.  We  know  of  no  rule  or 
principle  of  law^  by  which  a  vendor 
of  an  article  can  be  held  liable  for 
mistakes  in  the  nature  or  quality  of 
the  article  arising  from  his  careless- 
ness and  negligence,  which  causes 
loss  or  injury  to  other  persons  than 
his  immediate  vendee,  where  there 
has  been  no  fraudulent  or  false  i"ep- 
resentations  in  the  sale,  and  the  ar- 
ticle sold  was  in  itself  harmless; 
especially  wliere  the  sale  is  made 
without  any  notice  to  the  vendor 
that  the  article  is  bought  for  a,  third 
person,  or  that  it  is  intended  to  be 
used  in  combination  with  other  sub- 
stances which  make  it  dangerous  or 


injurious  to  persons  or  property.  In 
such  a  case  a  vendor  assumes  no  re- 
sponsibihty,  and  incurs  no  liability, 
beyond  that  which  results  from  his 
contract  with  his  vendee.  With  re- 
mote vendors  of  the  article,  who 
purchase  it  by  sub-sales  from  those 
to  whom  it  was  originally  sold,  he 
enters  into  no  contract,  either  ex- 
press or  implied,  and  takes  on  him- 
self no  obligation  or  dutj  whatever. 
Nor  has  he  done  any  wrongful  or 
illegal  act  towards  third  persons,  for 
the  consequences  of  which  he  is 
liable.  The  general  principles  appli- 
cable to  this  class  of  cases  is,  that 
the  vendor  takes  on  himself  no  duty 
or  obligation  other  than  that  which 
results  from  his  contract.  For  a 
breach  of  this,  he  is  liable  only  to 
those  with  whom  he  contracted. 
All  others  are  strangers.  The  law 
fastens  on  him  no  general  or  public 
duty  arising  out  of  his  contract,  for 
a  breach  of  w^hich  he  can  be  held 
liable  to  those  who  are  not  in  privity 
with  him."  See  Loop  v.  Litchfield, 
42  N.  Y.  351;  Longmied  v.  Halliday, 
6  Exch.  761;  LangreJg3  v.  Levy,  3 
M.  &  W.  519. 

'  Boston,  etc.  R.  R.  Co.  v.  Shanly, 
107  Mass.  568;  Farrant  v.  Barnes,  11 
C.  B.  N.  S.  553. 


30  COMPENSATION. 

causes  such,  explosion  is  accidental  or  results  from  the  negli- 
gence of  a  third  person.^ 

So,  a  person  who,  by  public  false  representations,  causes 
another  reasonably  to  act  upon  such  representations  as  true  in  a 
matter  of  business,  is  liable  to  make  good  any  loss  the  latter 
may  sustain  from  the  falsity  of  such  declarations.'^ 

The  servants  of  a  raih'oad  company  ran  its  cars  over  a  hose 
being  used  to  convey  water  to  a  burning  building,  thereby,  after 
due  warniag,  severing  it,  and  thus  preventing  the  extinguish- 
ment of  the  fire.  It  was  held  that  the  company  was  hable, 
though  the  hose  did  not  belong  to  the  plaintiffs,  and  the  men  in 
charge  of  it  were  not  their  servants  —  that  the  severing  of  the 
hose  was  the  proximate  cause  of  the  loss.^ 

The  plaintiif  engaged  with  defendant  to  serve  on  board  the 
defendant's  vessel  as  a  common  seaman  on  a  specified  voyage ; 
breach;  that  the  defendant  neglected  to  supply  and  keep  on 
board  the  vessel  a  proper  supply  of  medicines,  as  requii^ed  by  a 
statute,  whereby  the  plaintiff's  health  suffered;  held  a  good 
cause  of  action.* 

The  sale  of  a  saltpetre  cave  was  rescinded,  on  the  ground  of 
the  vendor's  fraud,  and  the  vendee  claimed  compensation  for 
erections  on  the  premises  for  their  improvement  and  use,  made 
prior  to  the  discovery  of  the  fraud.  The  com't  held  that  these 
expenditures  were  not  a  loss  naturally  and  proximately  resulting 
from  the  fraud ;  that  they  were  not  part  of  the  contract,  but 
made  by  the  complainant,  of  his  own  choice,  in  consequence 
of  the  bargain ;  that  damages  could  not  be  given  upon  the  first 
consequence,  and  then  upon  successive  subsequent  consequences.^ 
But  it  is  obvious  that  the  expenditm^es  were  a  proper  item  of 

^  Myers  v.  Malcolm,  6  Hill,  292.  In  this  case  it  was  contended  that  as 

*  Morse  v,  Switz,  19  How.  Pr.  275;  the  act  of  parliament  imposing  the 

Gerhard  v.   Bates,  2  E.  &  B.   476;  duty  to  keep  a  proper  supply  of  med- 

Polhill  V.  Walter,  3  B.  &  Ad.  114;  icine,  provided  a  penalty  for  neglect 

see  Chester  v.  Dickinson,  52  Barb,  of  that  duty,  and  that  it  might  be 

849.  sued  for  and  collected  by  a  common 

2  Metallic,    etc.   Co.    v.   Fitcliburg  informer,  no  action  at  common  law 

R.  R.  Co.  109  Mass.  277;  Atkinson  v.  would  lie  for  damages  resulting  from. 

Newcastle,  etc.  Co.  L.  R.  6  Exch.  the  breach  of  the  statutory  duty,  but 

404;  but  see  Matt,  v,  Hudson  R.  R.  the  court  sustained  the  action.  Rown- 

R.  Co.  1  Robt.  593.  ing  v.  Goodchild,  2  W.  Bl.  906. 

4  Couch  V.  Steel,  3  El.  &  B.  402.  ^Payton  v.  Butler,  3  Haywood,  141. 


KEMOTE   AXD   PKOXDIATE   CAUSE. 


31 


damages  for  the  fraud,  if,  as  a  fact,  tliey  were  expenditures 
likely  to  be  made  by  a  purchaser ;  for  then  they  were  a  loss 
which  was  the  natural  and  proximate  consequence  of  the  wrong 
done.^ 

In  a  late  case  in  IlHnois,  the  defendant  contracted  as  agent, 
without  authority,  to  sell  land  belonging  to  the  plaintiff,  and  the 
plaintiff  had  been  put  to  the  expense  of  defending  an  unsuccess- 
ful suit  on  that  contract  for  specific  performance.  It  was  held 
that  the  plaintiff  was  entitled  to  recover  as  damages  his  trouble 
and  expense  in  making  such  defense.^ 

D^iiiAGEs  FOK  ^^ox-KEPAIB  OF  HIGHWAYS. —  Municipal  corpora- 
tions, liable  for  non-repair  of  highways,  are  Hable  for  injmies 
sustained  by  travelers,  using  due  care,  from  a  defect  existing  by 
the  neglect  of  these  corporations.^ 

The  statutes  imposing  a  liability  on  towns  for  injm-ies  result- 
ing from  defects  in  highways  have  received,  in  some  states,  a 
stricter  construction  than  where  there  is  a  coimnon  law  habihty ;  ^ 


•  In  the  case  of  Payton  v.  Butler, 
supra,  tlie  court  say:  "The  failure 
of  a  postuiaster  to  deliver  a  letter 
giving  Liberty  by  a  certain  day  to  pay 
for  a  lottery  ticket,  price  one  dollar, 
would  make  him  liable  for  $20,000, 
should  the  ticket  afterward  turn  out 
to  be  a  prize  of  $20,000.  In  short,  the 
absurdity  of  such  damages  is  well  elu- 
cidated by  the  story  of  the  crockery, 
ware  jieddler  who  intended  by  the 
sale  and  profits  to  become  a  mer- 
chant and  then  a  nobleman  of  the 
first  order,  and  afterwards  to  marry 
the  princess."  See  Bishop  v.  William- 
son, 11  Me.  495,  where  it  was  held 
that  a  postmaster  was  liable  to  an  ac- 
tion for  refusing  to  deliver  a  letter 
according  to  its  address,  but  de- 
livering it  to  g,nother,  it  containing 
a  list  of  lottery  prizes  or  statement 
of  the  drawmg;  and  it  appearing 
that  the  person  receiving  the  letter, 
availing  himself  of  the  information 
contained  in  the  letter,  purchased  of 
the  plaintiff,  who  Tvas  vendor  of  lot- 
tery tickets,  a  ticket  that  had  drawn 


a  prize;  the  injury  was  held  to  be  the 
immediate  consequence  of  the  un- 
lawful withholding  of  the  letter,  and 
that  the  proper  measure  of  damages 
was  the  net  amount  of  the  prize. 

2  Pliilpot  V.  Taylor,  75  HI.  309. 

3  Toms  V.  ^Vhitby,  35  Upp.  Can.  Q. 
B.  195;  OUver  v.  La  VaUe,  36  AVis. 
593. 

*In  Marble  v.  Worcester,  4  Gray, 
395,  the  court,  by  Shaw,  C.  J.,  say, 
"The  general  rule,  we  understand, 
is,  that  where  two  or  more  causes 
concur  to  produce  an  effect,  and  it 
cannot  be  determined  which  con- 
tributed most  largely,  or  whether, 
without  the  concurrence  of  both,  it 
would  have  happened  at  all,  and  a 
particular  party  is  responsible  only 
for  the  consequences  of  one  of  these 
causes,  a  recoveiy  cannot  be  had, 
because  it  cannot  be  judicially  de- 
termined that  the  damage  would 
have  been  done  without  such  concui-- 
rence,  so  that  it  camaot  be  att  ributed 
to  that  cause  for  which  he  is  an- 
swerable. 


32 


COMPENSATION. 


"  The  rule  In  jure,  causa  proxima, 
non  reniota,  spectatur,  is  of  very- 
general  application  in  the  law;  and 
although  more  frequently  noticed 
and  illustrated  in  the  law  of  insur- 
ance, yet  it  is  equally  applied  in 
other  cases  of  like  kind. 

"The  whole  doctrine  of  causation, 
considered  in  itself  metaphysically, 
is  of  profound  difficulty,  even  if  it 
may  not  be  said  of  mystery.  It  was 
a  maxim,  we  believe,  of  the  school- 
men, causa  causanti,  causa  est 
causatis.  And  this  makes  the  chain 
of  causation,  by  successive  links, 
endless.  And  this  perhaps,  in  a  cer- 
tain sense,  is  true.  Perhajjs  no  event 
can  occur  "which  may  be  considered 
as  insidated  and  independent;  every 
event  is  itself  the  effect  of  some 
cause,  or  combination  of  causes,  and 
in  its  turn  becomes  the  cause  of 
many  ensuing  consequences,  more 
or  less  immediate  or  remote.  The 
law,  however,  looks  to  a  practical 
rule,  adapted  to  the  rights  and  duties 
of  all  persons  in  society,  in  the  com- 
mon and  ordinary  concerns  of  actual 
and  real  life,  and  on  account  of  the 
difficulty  of  unraveling  a  combina- 
tion of  causes,  and  of  tracing  each 
result,  as  a  matter  of  fact,  to  its  true, 
real  and  efficient  cause,  the  law  has 
adopted  the  rule  before  stated,  of  re- 
garding the  proximate,  and  not  tlie 
remote,  cause  of  the  occurrence 
which  is  the  subject  of  inquiry."  He 
illustrates  the  distinction  between 
remote  and  proximate  caiise  by  in- 
surance cases.  Delano  v.  Bedford 
Marine  Ins.  Co.  10  Mass.  354,  in 
which  the  rule  stated  was  that  "in 
eveiy  question  of  loss,  demanded 
upon  a  policy  of  insurance,  it  is  the 
immediate  and  direct,  not  the  remote 
or  contingent,  cause  of  loss,  which 
is  to  be  regarded  in  stating  and 
maintaining  the  title  of  the  assured 
to  recover  upon  the  contract,"  and 
Livie  V.  Jenson,  12  East,  648,  from 


which  he  quotes  Lord  EUenborough's 
illustration:  "  If,  for  instance,  a  ship 
meets  with  sea  damage  which  checks 
her  rate  of  sailing  so  that  she  is 
taken  by  an  enemy  from  whom  she 
would  otherwise  have  escaped, 
though  she  would  have  arrived  safe 
but  for  the  sea  damage,  the  loss  is  to 
be  ascribed  to  the  capture,  not  to  the 
sea  damage;  and  this  upon  the  prin- 
ciple of  caaisa  proxima,  non  remota, 
spectatur."  The  learned  judge  fur- 
ther said:  "  We  have  taken  this  gen- 
eral rule  from  the  law  of  insurance, 
because  it  has  there  most  frequently 
occurred,  and  because  the  rule,  and 
the  reasons  of  policy  and  justice  on 
whicli  it  is  founded,  are  there  more 
accurately  stated  and  illustrated, 
with  the  distinctions  and  modifica- 
tions under  which  it  is  aiaplied.  But 
the  same  rule  is  applied  in  various 
other  cases,  and  especially  to  that 
class  of  cases  in  which  towns  are 
held  liable  for  damages  to  person 
or  property,  by  reason  of  any  defect 
of  a  highway."  He  deduces  from 
Massachusetts  cases  the  principle 
"  that  upon  the  true  construction  of 
the  statute,  the  town  are  responsible 
only  for  the  direct  and  immediate 
loss  occasioned  by  the  defect  in  the 
highway;"  and  the  court  held,  that 
*  *  it  follows  as  a  consequence,  that  if 
that  damage  arises  from  a  more  re- 
mote cause,  or  froin  any  efficient 
concurring  cause,  without  which  it 
would  not  have  hajopened,  or  from 
pure  accident,  in  either  case  it  is  not 
a  loss  for  which  the  town  are  re- 
sponsible." 

In  McDonald  v.  Snelling,  14  Allen, 
292,  the  court  treat  this  decision  as 
based  upon  the  statute,  and  remark 
that  "the  statutoiy  liability  is  more 
narrowly  restricted  than  the  rule  in 
actions  at  common  law  for  damages 
caused  by  negligence,  in  which  it 
is  ]Derfectly  well  settled  that  the 
contributory  negligence  of   a  tiiird 


EEMOTE    AJSTD   PKOXIMATE   CAUSE. 


33 


party  is  no  defense,  where  the  de- 
fendant lias  also  been  guilty  of  negli- 
gence, without  which  the  damage 
would  not  have  been  sustamed.  Ea- 
ton V,  Boston,  etc.  R.  R.  Co.  11  Allen, 
500."  The  maxim  invoked  in  the 
former  case  is  thus  remarked  upon: 
"  Opinions  upon  questions  of  marine 
insurance  are  frequently  quoted  to 
illustrate  the  meaning  of  the  maxim, 
causaproxima  non  remota  spectatur. 
The  exigencies  of  the  present  decis- 
ion do  not  require  an  elaborate  ex- 
amination of  the  doctrine  in  its 
application  to  the  law  of  insurance, 
but  a  few  observations  may  be  use- 
ful. Where  the  immediate  cause  of 
loss  is  a  peril  insured  against,  the 
underwriters  are  not  exonerated  by 
the  fact  that  its  original  cause  was 
something  not  covered  by  the  i3olicy. 
They  are  liable  if  the  loss  ends  in  a 
peril  insured  against,  although  it 
began  in  some  other  cause.  Thus,  a 
loss  arising  immediately  from  a  peril 
of  the  sea,  but  remotely  from  the 
negligence  of  the  master,  is  protected 
by  the  policy;  but  it  by  no  means 
follows  that  in  an  action  against  the 
master  for  such  negligence,  the  con- 
sequent loss  of  the  cargo  could  not  be 
included  in  the  measure  of  damages. 
Redman  v.  Wilson,  14  M.  &  W.  476. 
On  the  contrary,  where  a  master  un- 
necessarily deviated  from  his  voyage, 
and  during  the  deviation  a  cargo  of 
lime  was  wet  by  a  tempest,  and  the 
bark  was  thereby  set  on  fire  and 
consumed,  the  ou-ner  was  held  liable 
for  the  fault  of  its  agent,  the  master, 
and  the  deviation  was  deemed  to  be 
sufficiently  the  proximate  cause  of 
the  loss  of  the  cargo.  Davis  v. 
Garrett,  6  Bing.  716.  In  a  recent 
insurance  cause,  one  learned  judge, 
Willes,  J.,  said:  'The  ordinary  rule 
of  insurance  law  is,  that  yovi  are  to 
look  to  the  proximate  and  immedi- 
ately operating  cause,  and  to  that 
only,'  And  another,  Erie,  C.  J., 
Vol.  1  —  3 


said:  '  The  words  are  to  be  construed 
with  reference  to  the  known  princi- 
ple pervading  insurance  law,  causa 
])roxima  non  remota  spectatur;  the 
loss  must  be  connected  with  the 
supposed  cause  of  it,  and  in  the  rela- 
tion of  cause  and  effect,  speaking  in, 
common  parlance.'  lonides  v.  Uni- 
versal Ins.  Co.  8  Law  Times,  N,  S.  705; 
Marsden  v.  City  and  County  Ass. 
Co.  L.  R.  1  C.  P.  232.  But  m  an 
action  for  damages  for  refusing  to 
receive  a  ship  into  a  dock,  the  rule 
was  said  to  be,  '  that  the  damage 
must  be  proximate  (not  immediate) 
and  fairly  and  reasonably  connected 
with  the  breach  of  contract  or 
wrong.'  As  to  what  is  so,  different 
minds  will  differ.  Wilson  v.  New- 
port Dock  Co.  &  R.  1  Exch.  188.  Per- 
haps the  truth  may  be  that  a  maxim 
couched  in  terms  so  general  as  to  be 
necessarily  somewhat  indefinite  has 
been  indiscriminately  applied  to  dif- . 
ferent  classes  of  cases  in  different 
senses,  or  at  least  without  exactness 
or  precision;  and  that  this  is  the 
real  explanation  of  the  circumstance 
that  causa proxima,  in  suits  for  dam- 
ages at  common  law,  extends  to  nat- 
ural and  probable  consequences  of  a 
breach  of  contract  or  tort;  while  in 
insurance  cases  and  actions  on  our 
highway  statutes,  it  is  limited  to  the 
immediate  operating  cause  of  the 
loss  or  damage.  If  this  be  so,  the 
frequent  reference  to  the  maxim  in 
cases  like  the  present  is  not  particu- 
larly useful,  and  certainly  not  con- 
ducive either  to  an  accurate  state- 
ment of  principles,  or  to  uniform  and 
intelligible  results.  In  insurance 
causes  the  maxim  is  resorted  to  as 
furnishing  a  rule  by  which  to  deter- 
mine whether  a  loss  is  attributable 
to  a  peril  against  which  the  contract 
has  promised  indemnity,  and  its  ap- 
plication charges  as  frequently  as  it 
exonerates  the  underwriters.  Peters 
v.  Warren  Ins.  Co.  3  Sumn.  389;  S.  C. 


34 


COMPENSATION. 


14  Pet.  99;  Hillier  v.  Alleghany  Ins. 
Co.  3  Penn.  St.  470.  The  limits  of 
liability  and  the  definition  of  proxi- 
mate cause  in  the  law  of  insurance 
are  too  narrow  and  restricted  to  be 
applied  to  the  present  case,"  a  com- 
mon law  action  for  negligence. 

In  Montgomery  v.  Firemen's  Ins. 
Co.  16  B.  Mon.  427,  it  was  held  that 
when  a  stipulation  in  a  policy  of  in- 
surance is  that  the  insurers  are  not 
to  be  liable  for  loss  arising  from  the 
bursting  of  boilers,  and  the  boiler 
burst  and  the  boat  insured  took  fire 
and  burned  up,  there  was  no  liability 
under  the  contract.  Marshall,  C.  J., 
said,  ' '  causa  proxima  non  reinota 
spectatitr  is  a  maxim  in  that  law  (of 
marine  insurance)  which,  although 
differently  construed  at  different  pe- 
riods, has  in  terms  been  adhered  to 
from  time  immemorial." 

"  In  the  application  of  this  max- 
im, many  of  the  older  cases  de- 
termined that  the  loss  must  be 
attributed  to  the  cause  of  injury  or 
destruction  actually  in  operation  at 
the  time  of  its  occurrence,  and  it 
was  consequently  held  that,  although 
a  peril  insured  against  had  in  fact 
subjected  the  vessel  to  the  cause 
which  destroyed  or  injured  it,  or  al- 
though a  peril  assumed  put  in  opera- 
tion the  destructive  cause,  the  loss 
was  to  be  attributed  to  the  cause 
immediately  operating  at  the  time 
of  its  occurrence.  But  the  modem 
decisions  still  adhering  to  the  same 
maxim,  but  under  a  broader  con- 
struction, have  established  the  more 
reasonable  doctrine,  that  if  the  ves- 
sel is,  by  a  peril  insured  against, 
subjected  to  the  operative  cause  of 
destruction  or  injviry,  or  if  the  peril 
insured  against  puts  the  destructive 
peril  in  operation,  the  peril  insured 
against  being  in  fact  the  real  cause 
of  the  loss,  is  to  be  deemed  the 
proximate  cause,  and  especially 
when  the  destructive   cause    is    in 


operation  before  the  vessel    is  re- 
lieved from  the  peril  insured  against. 

' '  As  the  comi')any  did  not  in  terms 
assume  the  peril  of  any  loss  aris- 
ing from  the   bursting  of    boilers, 
there  is  no  reason,  on  the  face  of  the 
policy,  why  the  declaration  of  non- 
liability for   any  such  loss,   if   re- 
garded as  an  exception  to  a  liability 
which  would  otherwise  exist,  should 
not  be  understood  as  an  exception 
to  the   liability  for  a  loss   by  fire 
necessarily  and  immediately  caused 
by  the    bursting  of  boilers.       The 
parties  may  not   have  known  that 
under  the  general  terms  of  this  pol- 
icy there  was  any  liabiUty  for  the 
mere  bursting  of  boilers,  ^^nless  it 
set  in  operation,  or  was  the  conse- 
quence  of,    one   of  the    perils    ex- 
pressly assumed,  or  was  understood 
to   be   included   in   the  j)erils  enu- 
merated; and  the  declaration  of  non- 
liability  may  have  been   expressly 
intended  to  except  losses  by  fire  or 
other  peril  expressly  insured  against, 
but  arising  in  fact  and  immediately 
or  necessarily  from  the  bursting  of 
boilers.     Or    the    declaration    may 
have  been  inserted  in  the  policy  to 
make  that  certain  which  the  i)arties, 
or  the  insurer,  might  have  consid- 
ered as  uncertain;   and  as  it  does, 
in  terms  plain   and  unambiguous, 
clearly  embrace  the  loss  which  has 
occurred,  and  as  the  destruction  of 
the  boat  was  the  certain  and  natural 
consequence  of  the  bursting  of  the 
boiler,  and  -was  a  loss  arising  from 
it  by  the  agency  of  fire  communi- 
cated by  the   explosion  itself,  and 
simultaneously  with  it,  we  are  of 
the  opinion  that  the  peril  of  such 
loss  -was  expressly,  and  as  must  be 
supposed,   knowingly,   assumed  by 
the  assvxred."    In  the  case  of  Insur- 
ance Co.  V.  Tweed,  7  Wall.  44,  cot- 
ton   in    a    warehouse  was  insured 
against  fire  and  there  was  an  excep- 


REMOTE   AND   PEOXDIATE   CAUSE. 


35 


tion  in  the  policy  against  fire  which 
miglit  hapi^en  by  means,  among 
otliers,  of  any  explosion.  An  ex- 
plosion took  place  in  another  ware- 
house situate  directly  across  a  street, 
which  threw  down  its  walls,  scat- 
tered combustible  material  in  the 
street,  and  resulted  in  an  exten- 
sive conflagration,  embracing  sev- 
eral squares  of  buildings,  and  among 
them  tlie  warehouse  where  the  cot- 
ton was  stored,  which,  witli  it,  was 
wholly  consumed.  The  fire  was  not 
communicated  from  the  warehouse 
where  the  explosion  took  place  di- 
rectly to  the  warehouse  where  the 
cotton  was,  but  came  more  immedi- 
ately from  a  third  building,  which 
was  itself  fired  by  the  explosion. 
Wind  was  blowing,  but  with  what 
force  did  not  appear,  from  this  third 
building  to  the  one  in  which  the 
cotton  was  stored.  The  whole  fire 
was  a  continuous  affair  from  the  ex- 
plosion, and  under  full  headway  in 
about  half  an  hour.  It  was  held 
that  the  insurers  were  not  liable. 
Miller,  J. ,  said :  ' '  That  the  explosion 
was  in  some  sense  the  cause  of  the 
fire,  is  not  denied,  but  it  is  claimed 
that  its  relation  was  too  remote  to 
bring  the  case  witliin  the  exception 
of  the  poHcy.  And  we  have  had 
cited  to  us  a  general  review  of  the 
doctrine  of  proximate  and  remote 
causes  as  it  has  arisen  and  been  de- 
cided in  the  courts  in  a  great  variety 
of  cases.  It  would  be  an  unprofit- 
able labor  to  enter  into  an  examina- 
tion of  these  cases.  If  we  coidd 
deduce  from  them  the  best  possible 
expression  of  the  rule,  it  would  re- 
main after  all  to  decide  each  case 
largely  upon  the  special  facts  be- 
longing to  it,  and  often  upon  the 
very  nicest  discrinainations. 

"  One  of  the  most  valuable  of  the 
criteria  furnished  us  by  these  au- 
thorities, is  to  ascertain  whether  any 
new  cause  has  intervened  between 


the  fact  accomplished  and  the  al- 
leged cause.  If  a  new  force  has  in- 
tervened, of  itself  sufiicient  to  stand 
as  the  cause  of  the  misfortune,  the 
other  must  be  considered  as  too  re- 
mote. 

"In  the  present  case  we  think 
there  is  no  such  new  cause.  The 
explosion  undoubtedly  produced  and 
set  in  operation  the  fire  which 
burned  the  plaintiff's  cotton.  The 
fact  tliat  it  was  carried  to  the  cot- 
ton by  first  burning  another  build- 
ing, supplies  no  new  force  or  power 
which  caused  the  burning.  Nor 
can  the  accidental  circumstance 
that  the  vrind  was  blowing  in  a  di- 
rection to  favor  the  pi'ogress  of  the 
fire  towards  the  Avarehouse  be  con- 
sidered a  new  cause.  That  may 
have  been  the  usual  course  of  the 
breeze  in  that  neighborliood.  Its 
force  may  have  been  trifling.  Its 
influence  in  producing  the  fire  in 
the  warehouse  where  the  cotton  was, 
was  too  slight  to  be  substituted  for 
the  explosion  as  the  cause  of  the 
fire." 

The  maxim,  causa  proxima  non 
remota  spectahir,  while  applied  with 
some  strictness  in  insurance  cases, 
is  either  rejected  altogether  in  com- 
mon law  actions  to  recover  damages, 
or  is  more  liberally  applied. 

In  Daniels  v.  Ballentine,  23  Ohio 
St.  539,  the  court  say:  "In  such  ac- 
tions, a  principle  is  involved,  not  in 
general  applicable  in  the  law  of  in- 
surance; the  liability  of  the  defend- 
ant being  made  to  depend  upon  the 
natural  and  probable  coimection  be- 
tween the  breach  of  contract  or  tort, 
and  the  alleged  injurious  conse- 
quence. Hence,  in  such  cases,  while 
the  responsibility  of  the  defendant 
is  not,  necessarily,  restricted  to  the 
direct  and  immediate  consequence 
of  his  fault,  it  does  not  extend  to 
consequences  which  cannot  be  re- 
garded as  the  natural  results  of  his 


36  COMPENSATION. 

but  it  was  held  in  Massachusetts  that  a  town  was  liable  where 
the  prmiary  cause  of  the  injury  Avas  a  pure  accident :  a  nut 
getting  loose  and  dropping  from  a  bolt,  the  horses  were  detached 
from  a  carriage  while  descending  a  hill,  at  the  foot  of  which 
the  road  abruptly  turned  to  the  right  on  the  bank  of  a  mill 
pond,  into  which,  by  going  straight  on,  the  carriage  plunged,  on 
account  of  the  absence  of  any  raihng.^ 

The  court  in  this  case  say:  "The  .  .  question  . 
whether,  in  case  of  an  injury  received  while  traveling  upon  a 
public  way,  shown  to  be  defective,  but  where  the  accident  or 
injury  is  attributable  in  part  to  a  defect  in  the  carriage  or  har- 
ness, but  occurring  under  such  circumstances  as  show  that  the 
plaintiff  was  chargeable  with  no  fault  or  negligence  in  the  mat- 
ter, the  town  is  hable  for  the  damage,  is  one  not  free  from  diflB.- 
oulty.  Against  maintaining  such  action,  it  is  strongly  urged, 
that  the  injury  is  not  fairly  imputable  to  the  defect  in  the 
highway ;  and  inasmuch  as  it  resulted,  at  least  in  part,  fi'om 
causes  for  which  the  town  was  not  responsible,  and  over  which 
it  had  no  control,  the  town  should  not  be  chargeable  with  dam- 
ages therefor.  If  the  objection  was,  that  the  injury  was  caused 
by  the  combined  effect  of  an  obstruction  or  want  of  repair,  in 
the  road,  and  the  want  of  ordinary  care,  dihgence  or  skill,  on 
the  part  of  the  plaintiff,  in  reference  to  his  harness,  his  horses, 
or  his  carriage,  or  the  use  of  the  road,  it  would  be  very  clear 
that  the  plaintiff  could  not  recover.  He  must  be  without  fault 
in  this  respect ;  and  if  not  so,  although  the  highway  be  out  of 
repair,  the  town  is  not  liable.  But  is  the  lil^e  effect  to  follow 
when  there  is  a  defect  in  the  road,  but  the  accident  or  injmy  is 
attributable  in  part  to  a  defect  in  the  carriage  or  harness,  which 
defect  was  unknown  to  the  plaintiff,  and  which  was  of  such  a 
character  that  it  might  have  existed,  and  yet  no  fault  or  negh- 
gence  be  chargeable  by  reason  thereof  to  the  plaintiff  ?  "We 
should  be  slow  to  adopt  or  sanction  any  principles,  in  reference 
to  this  class  of  actions,  that  would  in  so  many  cases  render  the 
statute  nugatory.     If  the  circumstance,  that  some  accident  or 

conduct,    and  which,    on    that   ac-  Ceach  v.  Purmeter,  23  Pa.  St.  196; 

count,  could  not,  by  ordinary  fore-  McGrew  v.  Stone,  53  Pa.  St.  436. 

cast,  be  anticipated."  See  Kellogg  '  Palmer  v.  Andover,  3  Cush.  600. 
V.  Chicago,  etc.  R.  R.  Co.  26  Wis.  233; 


REMOTE   AND   PROXEMATE   CAUSE.  37 

casualty  occurred,  as  the  primary  cause,  and  -u^hich  by  reason  of 
a  defect  in  the  road,  and  through  their  combined  operation, 
caused  the  damage  to  the  plaintiff,  would  deprive  the  party  of 
recovering  damages,  the  protection  to  the  traveler  would  be 
very  much  restricted.  It  is  the  ordinary  com'se  of  events,  and 
consistent  with  a  reasonable  degree  of  prudence  on  the  part  of 
the  traveler,  that  accidents  will  occur ;  horses  may  be  frightened, 
the  harness  may  break,  a  bolt  or  screw  may  be  dropped.  To 
guard  against  damage  by  such  accidents,  the  law  requires  suit- 
able  raihngs  and  barriers,  a  proper  width  of  the  road,  and  what- 
ever may  be  reasonably  required  for  the  safety  of  the  traveler. 
It  seems  to  us,  that  Vv^hen  the  loss  is  the  combined  result  of  an 
accident  and  of  a  defect  in  the  road,  and  the  damage  would  not 
have  been  sustained  but  for  the  defect,  although  the  primary 
cause  be  a  pure  accident,  yet,  if  there  be  no  fault  or  neghgence 
on  the  part  of  the  plaintiff,  if  the  accident  be  one  which  com- 
mon prudence  and  sagacity  could  not  have  foreseen  and  pro- 
vided against,  the  town  is  hable." 

Later  cases  in  that  state  hold  that  where  the  accident  or  injury 
was  the  combined  effect  of  a  defect  in  a  highway  and  the  fright 
of  an  animal,  causing  it  to  escape  from  the  control  of  its  di^iver, 
the  town  is  not  liable.  This  is  the  syllabus  of  the  case  abeady 
referred  to,  decided  in  1855  :  "  If  a  horse,  drawing  a  vehicle, 
though  driven  with  due  care,  becomes  frightened  and  excited  by 
reason  of  the  striking  of  the  vehicle  against  a  defect  in  the 
highwaj^,  frees  himself  from  the  control  of  his  driver,  tmms, 
and,  at  the  distance  of  fifty  rods  from  the  defect,  knocks  down 
a  person  on  foot  in  the  highway  who  is  using  reasonable  care, 
the  city  or  town  bound  to  keep  the  highway  in  repair  are  not 
responsible  for  the  injiu"}^  so  occasioned,  though  no  other  cause 
intervene  between  the  defect  and  the  injury."  ^  And  in  a  case 
decided  seven  years  later,  it  Vv'as  held  that  a  town  is  not  respon- 
sible in  damages  if  a  horse,  being  frightened  by  an  accident, 
breaks  away  from  his  driver  and  escapes  from  all  control,  and 
afterwards  while  running  at  large  meets  with  an  injury  through 
a  defect  in  a  highway.'"* 

'  ]\Iarble  v.  Worcester,  4  Gray,  395.      it  does  not  conflict  with  Palmer  v. 

'Davis  V.   Dudley,   4  Allen,  557.      Andover.     Merrick,  J.,  says:  "The 

The  opinion  in  tliis  case  declares  that     facts  in  the  present  case  are  widely 


38 


COMPENSATION. 


different,  and  afford  no  occasion  for 
the  application  of  tlie  doctrine  by 
wliich,  in  tlie  decision  of  that  case, 
the  court  were  influenced  and  con- 
trolled. Here  the  accident  and  in- 
jury were  not  coincident,  but  were 
separate  and  produced  by  separate 
causes.  The  effect  of  the  accident 
as  procuring  cause  was  complete 
when  the  horse,  frightened  by  the 
falling  of  the  cross-bar  and  thills 
upon  his  heels,  became  detached 
from  the  sleigh  and  had  escaped  from 
the  control  of  the  driver.  The  blind 
violence  of  the  animal,  acting  with- 
out guidance  or  direction,  became, 
in  the  course  and  order  of  incidents 
which  ensued,  the  supervening  and 
proximate  cause  of  the  injury  in- 
flicted by  his  running  against  a 
wood-pile,  which  constituted  an  un- 
lawful obstruction  and  defect  in  the 
liighway.  In  this  succession  of 
events,  it  happens  that  the  accident 
placed  the  owner  in  a  situation 
w^here  it  was  out  of  his  power  to 
exercise  due  care  over  the  horse 
while  this  new  cause  was  in  opera- 
tion, and  until  it  had  contributed  to 
produce  the  disaster  by  which  his 
leg  was  broken."  See  Jackson  v. 
Bellevieu,  30  Wis.  250;  KeUey  v. 
Fond  du  Lac,  31  Wis.  179;  Moulton 
V.  Safford,  51  Me.  127. 

In  Toms  and  wife  v.  Corporation 
of  the  Township  of  Whitby,  35  Upp. 
Can.  Q.  B.  195,  is  a  very  interesting 
and  elaborate  opinion  in  a  some- 
what similar  case.  The  plaintiff'  and 
his  wife  sued  defendants  for  injury 
alleged  to  have  been  caused  to  the 
wife  by  their  neglect  to  have  a  rail- 
ing or  guard  along  an  embankment 
leading  down  to  a  bridge  on  one  of 
their  leading  highways  to  a  populous 
township.  It  appeared  that  the  wife 
and  her  son  about  eight  years  old 
were  crossing  a  bridge  in  a  buggy, 
when  the  horse  shied  at  some  new 
planks  on  the  the  bridge  and  backed 


to  the  end  of  it,  where  the  hind 
wheels  went  over  the  bank,  throwing 
her  out  and  into  the  water,  about 
fourteen  feet  below.  The  j  ury  found 
upon  the  evidence  that  the  highway 
was  not  in  a  sufficiently  safe  state, 
and  that  the  wife  was  guilty  of  no 
negligence  in  the  management  of 
the  horse.  Wilson,  J.,  said:  "The 
j)laintiifs  say  that  the  proximate 
cause  was  the  dangerous  condition 
of  the  road,  the  fright  of  the  horse 
and  its  becoming  unmanageable 
being  a  cause  conducing  in  j)art  to 
the  accident,  but  not  the  cause  of  it 
in  law;  and  that  in  fact  the  most 
immediate  and  proximate  cause  of 
the  injury  was  the  state  of  the  road. 
The  defendants  say  that  the  proxi- 
mate cause  in  law  was  the  unman- 
ageable conduct  of  the  horse;  that 
but  for  it  the  accident  could  not 
have  happened.  There  is  another 
view.  May  not  the  defective  road 
be  an  actionable  cause  against  the 
defendants,  although  the  frighten- 
ing of  the  horse,  if  it  had  been  wan- 
tonly done  by  another,  would  have 
been  an  actionable  cause  as  against 
him? 

"Would  not  that  person  and  the 
defendants  have  each  been  wrong- 
doers ?  If  that  is  so,  it  follows  the 
defendants  may  be  responsible,  for 
they  are  stni  wrong-doers,  although 
no  one  else  was  to  blame  in  produc- 
ing the  accident;  and  the  more  so 
because  no  one  but  themselves  did 
produce  it.  Wiiat,  then,  was  the 
proximate  cause  ?  That  will  be  best 
seen  by  an  examination  of  the  cases, 
although  it  is  not  an  easy  matter  to 
say  what  or  which  event  in  the  order 
of  sequence  may  be  treated  as  the 
actionable  or  proximate  cause  of 
action. 

"  It  will  be  found  that  we  are  not, 
in  all  cases,  restricted  to  the  imme- 
diate cause;  and  we  are  not  per- 
mitted  to    follow   the    '  causes    of 


KEMOTE  AND  PROXE^IATE  CAUSE. 


39 


causes,'  nor  the  '  causa  sine  qua  non ' 
as  the  ground  of  action.     The  max- 
im is  '  In  jure  non  remota  causa  sed 
proxima  spectatur.'      The    applica- 
tion of  the  maxim  is  attended  with 
tlifficulty  frt  times.      In  Montoya  v. 
London  Ass.   Co.  6  Exch.  451,  458, 
Parke,   B.,    said,    the     question    in 
each  case  is,  what  is  cause  proxima 
and  what  is  cause  remota.     There  is 
great  difficulty  in  saying  where  the 
precise  line  is  to  be  drawn,  and  it  is 
often    no    easy    matter    to    decide 
whether  a  particular  case  falls  within 
it  or  not.     In  Scott    v.    Dublin  & 
Wicklon,  E.   W.    Co.   11  Jr.    L.  N. 
S.  377,  Pigot,  C.  B.,  speaks  of  the 
distinction     between    remote    and 
proximate  cause  —  a  subject  wliich 
has  perplexed  metaphysicians  from 
the  days  of  tlie  schoolmen  down  to 
those  of  the  essays  of  Hume  and 
Brown.     In  Sneesby  v.  Lane.    etc. 
Ey.  Co.  L.    E.  9  Q.   B.  2G3,  Black- 
burn, J.,  said:    .     .     .     This  is  plain 
and  admitted  on  all  hands,  that  in 
the  construction  of  the  contract  of 
insurance  the  proximate  or  immedi- 
ate cause  of  the  loss  alone  is  that  to 
which  we  can  look  back.     In  Burton 
V.   Pinker  ton,  L.   E.    3    Excla.    340, 
Bramwell,  B. ,  said,  "  It  is  true  that 
in  one  sense  tlie  defendants'  conduct 
caused  the   imprisonment;  but  for 
that  no  doubt  the  plaintilT  would  not 
have  been  imprisoned.     Tliat,  how- 
ever, is  not  enough. "    There  is  a  quo- 
tation of  considerable  length,  which 
may  be  excused  if  it  is  made,  as  it  is 
from  an  able  writer,  and  wliich  is 
directly  applicable  to  this  subject. 
He  says:  "  If  a  i^erson  eats  of  a  par- 
ticular dish  and  dies  in  consequence, 
that  is,  would  not  have  died  if  he 
had  not  eaten  of  it,  people  would  be 
apt  to  say  that  the  eating  of  that 
dish  was  the   cause  of  his    death. 
There  needs  not,  however,  be  any  in- 
variable coimeetion  between  eating 
of  the  dish  and  death;  but  there  cer- 


tainly is  among  the  circumstances 
which  took  place  some  combination 
or  other  upon  which  death  is  inva- 
riably consequent;  as,  for  instance, 
the  act  of  eating  of  the  dish  com- 
bined with  a  particular  bodily  consti- 
tution, a  particular  state  of  present 
liealth,  and  perhaps  even  a  certain 
state  of  the  atmosphere;  the  whole 
of  which  circumstances,  perhaps, 
contributed  in  this  particular  case  to 
the  conditions  of  the  phenomenon, 
or,  in  other  words,  the  set  of  antece- 
dents which  determined  it,  and  but 
for  which  it  would  not  have  hap- 
pened. The  real  cause  is  the  whole 
of  these  antecedents,  and  we  have, 
philosophically  speaking,  no  right  to 
give  the  name  of  cause  to  one  of 
them  exclusively  of  the  others.  .  .  . 
But  although  we  may  think  proper  to 
give  the  name  of  cause  to  that  one 
condition,  the  fulfilment  of  which 
completes  the  tale  and  brings  about 
the  effect  without  further  delay,  this 
condition  has  really  no  closer  rela- 
tion to  the  effect  than  any  of  tlie 
other  conditions  have."  Mills'  Logic, 
N.  Y.  ed.  of  1872,  pp.  197,  198. 
Again,  he  says:  "And,  in  practice, 
that  particular  condition  is  usually 
styled  the  cause  whose  shai"e  in  the 
matter  is  superficially  the  most  con- 
spicuous—  or  whose  requisiteness  to 
the  production  of  the  effect  we  hap- 
pen to  be  insisting  upon  at  the  mo- 
ment. So  great  is  the  force  of  this 
last  consideration,  that  it  oftentimes 
induces  us  to  give  the  name  of  cause 
even  to  one  of  the  negative  condi- 
tions. We  say,  for  example:  'The 
army  being  surprised  was  because  of 
the  sentinel  being  off  his  post.'  But 
since  the  sentinel's  absence  was  not 
■what  created  the  enemy  or  made  the 
soldiers  to  be  asleep,  how  did  it  cause 
them  to  be  surprised?  All  that  is 
rcaUy  meant  is,  that  the  event 
would  not  have  happened  if  he  had 
been  at  his  duty.    His  being  off  hia 


40 


COMPENSATION. 


jjost  was  no  i^roducing  cause,  but  the 
mere  absence  of  a  preventing  cause. 
It  was  simply  equivalent  to  his 
non-existence.  From  nothing,  from 
a  mere  negation,  no  consequences 
can  proceed.  All  effects  are  con- 
nected by  the  law  of  causation  with 
some  set  of  positive  conditions. 
Negative  ones,  it  is  true,  being  al- 
most always  required  in  addition. 
.  .  .  And  again:  Since,  then, 
mankind  are  accvistomed  with  ac- 
knowledged propriety,  so  far  as 
the  ordinances  of  language  are  con- 
cerned, to  give  the  name  of  cause  to 
almost  any  one  of  the  conditions  of  a 
phenomenon  or  any  portion  of  a 
whole  number,  arbitrarily  selected, 
without  excepting  even  those  condi- 
tions whicli  are  purely  negative,  and 
in  themselves  incapable  of  causing 
anything,  it  will  probably  be  ad- 
mitted, without  longer  discussion, 
that  no  one  of  the  conditions  have 
more  claim  to  that  title  than 
another;  and  that  the  real  cause  of 
the  phenomenon  is  the  assemblage 
of  all  its  conditions.  There  is, 
no  doubt,  a  tendency  which  our 
first  example,  that  of  death  from 
taking  a  particular  food,  sufficiently 
illustrates,  to  associate  the  idea  of 
causation  with  the  proximate  ante- 
cedent event  rather  than  to  any  of 
the  antecedent  states  or  permanent 
facts  which  may  happen  also  to  be 
conditions  of  the  phenomenon,  the 
reason  being  that  the  event  not  only 
exists  but  begins  to  exist  immedi- 
ately previous,  while  the  other  con- 
ditions may  have  jire-existed  for  any 
indefinite  time."  The  subject,  then, 
it  appears,  is  somewhat  difficult  to 
deal  with  at  law,  and  while  philoso- 
phers treat  the  whole  of  the  antece- 
dents which  determine  the  result  as 
the  cause,  mankind  generally  give 
the  name  of  cause  to  almost  any 
one  of  the  conditions  arbitrarily 
selected,  or  whose  share  in  the  mat- 


ter is  superficially  the  most  con- 
spicuous, or  whose  requisiteness  to 
the  production  of  the  effect  we 
happen  to  be  insisting  upon  at  the 
moment,  and  it  cannot  be  quite  easy 
to  deal  with  it  either  by  the  reason- 
ing of  the  highly  educated  classes, 
nor  yet  by  that  of  the  ordinary  class 
of  mankind.  It  appears,  also,  that 
the  want  of  a  guard  or  of  a  suffi- 
cient one  at  the  place  of  the  acci- 
dent, although  a  negative  matter,  the 
mere  absence  of  a  preventing  or 
counteracting  cause,  may  properly, 
in  the  actual  business  of  life,  al- 
though not  so  in  the  schools,  be 
taken  as  a  cause  in  and  by  itself. 
Just  as  the  sentry  who  was  off  his 
post  would  be  liable  to  be  shot,  al- 
though he  was  only  the  negative 
cause  of  the  disaster.  The  cases  will 
show  that  the  circumstance,  phe- 
nomenon or  event  in  the  like  order 
of  sequence  towards  or  relation  to  a 
particular  resxilt,  is  not  always 
selected  as  the  actionable  cause,  but 
that  sometimes  the  event  immedi- 
ately preceding  the  effect  is  taken, 
and  at  other  times  some  event  be- 
fore that. 

It  is  like  the  instance  of  the  stone 
thx'own  into  water,  stated  in  the  work 
already  quoted  from,  p.  199.  It  may 
popularly  be  said  to  reach  the  bottom 
by  reason  of  the  earth's  attraction, 
or  by  its  exceeding  the  water  in  its 
specific  gravity. 

The  three  principal  events  here 
are  the  fright  of  the  horse,  the  back- 
ing of  the  horse  and  wagon,  or  the 
horse  becoming  unmanageable,  and 
the  absence  of  a  fence,  or  the  going 
of  the  wagon  over  the  bank. 

The  ijlaintiffs  say  the  proximate 
cause  of  the  injury  was  the  want  of  a 
fence.  The  defendants  say  it  was 
the  ungovernable  conduct  of  the 
horse,  no  matter  how  it  was  pro- 
duced, whether  by  accident,  mis- 
fortune or  otherwise. 


REMOTE   AJS'D    PKOXniATE   CAUSE. 


41 


The  following  cases  show  that  a 
cause  which  is  not  the  next  preced- 
ing event  to  the  loss,  damage  or  ef- 
fect, has  been  considered  to  be  the 
proximate  cause. 

In  BuiTOws  V.  The  March  Gas  & 
Coke  Co.  39  L.  J.  Ex.  33,  the  plaint- 
iff Agreed  with  the  defendants  to 
supply  him  with  a  service  pipe  from 
their  main  to  his  metre.  The  ser- 
vice pipe  leaked.  The  plaintiff  em- 
ployed a  gas-fitter  to  lay  down  pipes 
from  the  metre  over  his  premises; 
the  gas-fitter  negligently  took  a 
lighted  candle  to  search  for  the  leak. 
An  explosion  took  place,  which  dam- 
aged the  plaintiff's  projierty.  It 
was  held  the  plaintiff  was  not  an- 
swerable for  the  gas-fitter's  negli- 
gence, as  the  gas-fitter  was  an 
independent  workman,  and  so  the 
plaintiff  did  not  contribute  to  the 
accident,  and  the  injury  arose  from 
the  defective  service  pipe  which  ]iad 
before  been  laid  by  the  defendants, 
as  weU  as  from  the  gas-fitter's  neg- 
ligence, and  that  both  the  gas-fitter 
and  the  defendants  were  answerable 
to  the  plaintiff.  The  defective  pipe 
was  said  to  be  the  proximate  cause 
of  mischief  in  the  suit  against  the 
Gas  Co. ,  and  it  follows  from  the  ga.s- 
fitter  being  also  liable  that  the  prox- 
imaie  cause,  so  far  as  he  was 
concerned,  was  his  act  of  negligence 
in  using  the  lighted  candle.  The 
defective  pipe  was  the  primary  but 
not  strictly  the  proximate  cause; 
that  is,  the  next  immediate  event 
before  the  explosion.  But  the  court 
determined  in  that  action  that  the 
proximate  cause  of  the  injury,  as 
against  the  defendants,  was  the  de- 
fective service  pipe. 

In  Stanley  V.  West.  Ins.  Co.  L.  R. 
3  Ex.  71,  the  defendants  by  their 
policy  were  to  be  liable  for  gas  ex- 
plosions. A  fire  took  place  on  the 
premises  and  explosion  of  gas  fol- 
lowed from  the  fii-e,  and  it  was  held 


that  the  proximate  cause  of  the  loss 
was  not  the  explosion,  but  the  fire. 

The  j)rimaiy  cause  was  no  doubt 
the  fire,  but  the  exj)losion  was  the 
next  immediate  direct,  and  in  that 
sense,  the  proximate  cause  of  the 
loss,  but  the  decision  was  not  that 
way. 

In  HiU  V.  New  River  Co.  9  B.  &  S. 
303,  the  defendants  caused  water  to 
spout  up  in  the  highway,  and  left  it 
unfenced.  The  plaintiff's  horses 
were  frightened  at  it,  and  swerved 
and  fell  into  an  unfenced  excavation 
in  the  highway,  made  by  a  con- 
tractor who  was  constructing  a 
sewer.  Held,  that  the  proximate 
cause  of  injuiy  was  the  act  of  the 
water  company. 

There  are  a  great  many  cases  ex- 
pressly on  the  same  point,  to  which 
Fcan  do  no  more  than  refer:  Hamson 
V.  Great  North.  R.  W.  Co.  33  L.  J. 
Ex.  266;  Smith  v.  Low.  &  S.  West. 
R.  W.  Co.  L.  R.  5  C.  P.  98;  affirmed 
L.  R.  6  C.  P.  14;  Lee  v.  Riley,  18 
C.  B.  N.  S.  722;  Flower  v.  Adam,  2 
Taunt.  314;  lUidge  v.  Goodwin,  5 
C.  &P.  190;  Montoya  v.  London  As. 
Co.  6  Ex.  451;  The  Lords,  Bailiffs  & 
Jurats  of  Romney  JIarsh  v.  Cor.  of 
Trinity  House,  39  L.  J.  Ex.  163; 
Sneesby  v.  Lancashu-e  &  Yorkshire 
R.  W.  Co.  L.  R.  9  Q.  B.  263;  Law- 
rence V.  Jenkins,  L.  R.  8  Q.  B.  374. 

The  following  are  cases  in  which 
the  immediate  iDreceding  event  has 
been  held  to  be  the  proximate  cause. 
In  Atkinson  v.  N.  &  G.  Water- works 
Co.  L.  R.  6  Ex.  .404,  the  plaintiff 
proceeded  against  defendants  be- 
cause they  had  not  kept  their  pipes 
charged  at  all  times  with  water  at  a 
certain  pressure  for  the  use  of  all 
persons  for  the  extinguishing  of  fires, 
according  to  their  act  of  incorpora- 
tion, and  the  plaintiff's  premises 
took  fire  and  were  destroyed  from 
want  of  water.  And  it  was  held 
that  the  proximate  cause  of  the  loss 


42 


COMPENSATION. 


was  want  of  water  —  a  negative 
matter  —  and  not  the  fire. 

In  Green  v.  Elmslie,  1  Peake  N.  P. 
C.  212,  a  vessel  was  driven  by  a  storm, 
on  an  enemy's  coast,  and  there  cap- 
tured, and  the  proximate  cause  of 
the  loss  was  held  to  be  the  capture, 
and  not  the  perils  of  the  sea. 

In  Marsden  v.  City  &  Co.  As.  Co. 
L.  R.  1  C.  P.  232,  the  plaintiff  had  a 
policy  on  plate-glass  windows, 
against  loss  or  damage  from  any 
cause  wliatever,  excepting  fire, 
breakage  during  removal,  alterations 
or  repair  of  the  premises.  A  fire 
broke  out  in  the  adjoining  house, 
and  slightly  damaged  the  rear  of 
the  plaintiff's  shop,  but  it  did  not 
approach  where  tlie  plate-glass  was. 
The  plaintiff,  assisted  by  his  neigh- 
bors, was  removing  his  stock,  etc.,  to 
a  place  of  safety.  A  mob,  attracted 
by  the  fire,  tore  down  the  plaintiff's 
ehutters  and  broke  his  plate-glass 
windows  for  the  purjiose  of  plunder. 
And  it  was  heli^  the  proximate  cause 
was  the  lawless  act  of  the  mob,  and 
not  the  fire,  and  that  the  plaintiff 
was  entitled  to  recover.  See,  also, 
Scholes  V.  N.  London  R.  W,  Co.  21 
L.  T.  N.  S.  835.  In  Everett  v.  Lon. 
As.  Co.  19  C.  B.  N.  S.  126,  the  plaint- 
iff claimed  for  a  loss  by  fire.  An 
explosion  of  a  poAvder  magazine  took 
place,  and  the  disturbance  it  caused 
in  the  atmosphere  in  the  plaintiff's 
premises,  more  than  half  a  mile 
away,  did  him  damage,  and  it  was 
held  the  proximate  cause  was  the 
explosion  or  concussion  from  it,  and 
not  the  fire. 

The  other  cases  on  the  same  point 
are:  Thompson  v.  Hopper,  6  E.  & 
B.  172,  E.  B.  &  E.  1033;  Yatham  v. 
Hodgson,  6  T.  R.  656;  lonides  v. 
Universal  Marine  Ins.  Co.  14  C.  B. 
N.  S.  259;  Hahn  v.  Corbett,  2  Bing. 
205;  Wadham  v.  Marlord,  1  H.  Bl. 
439,  note. 

In  Atkinson  v.  N.  G.  Water-works 


Co.  L.  R.  6  Ex.  404,  before  men- 
tioned, it  wiU  be  observed  there  were 
two  proximate  causes,  one  as  against 
the  defendants  for  not  (keeping  a 
proi:>er  supply  of  water,  and  the 
other  would  have  been  against  the 
Ins.  Co.  in  respect  of  the  fire,  if 
there  had  been  a  policy  against  fire. 
So,  also,  in  lUidge  v.  Goodwin,  5 
C.  &  P.  190,  there  was  one  cause  of 
action  against  the  defendant  for 
carelessly  leaving  his  horse  un- 
watched  in  the  street,  the  other 
against  the  person  who  wantonly 
whipped  the  horse  and  really  caused 
the  mischief. 

So,  also,  in  Sneesby  v.  Lane.  & 
York  R.  W.  Co.  L.  R.  9  Q.  B.  263, 
for  the  defendants'  negligence  in 
sending  their  trucks  along  the  line 
and  dispersing  the  cattle,  and  also 
for  their  want  of  fencing,  if  they 
had  been  obliged  to  fence  as  against 
the  plaintiff.  Same,  also,  in  Bur- 
rows V.  March  Gas  &  Coke  Co.  39 
L.  J.  Ex.  33,  before  mentioned,  and 
probably  there  are  many  other  cases 
of  the  like  nature.  In  the  following 
cases  the  cause  of  action  was  held 
to  be  too  remote: 

In  Walker  v.  Goe,  3  H.  &  N.  395, 
affirmed  in  Ex.  Ch.  4  H.  &  N.  350, 
the  plaintiff's  barge  was  detained  in  a 
canal  by  a  lock  falling  in  from  want 
of  repair.  The  canal  was  vested  in 
commissioners  by  statute.  They 
leased  the  canal.  The  lessee  by  stat- 
ute was  to  keep  the  canal  in  repair, 
and  if  he  did  not,  the  commission- 
ers might  give  him  a  notice  to  re- 
pair, and  if  he  failed  on  the  notice  to 
do  so,  they  might  do  it  for  him,  and 
charge  him  with  the  expense;  and  it 
was  held  that  the  not  repairing  was 
not  the  material  proximate  resvxlt  of 
the  want  of  notice,  for  if  the  notice 
had  been  given  the  lessee  might  still 
not  have  made  the  repairs.  Following 
cases  are  to  same  effect:  Barber  v. 
Lesiter,  7  C.  B.  N.  S.  275;  Boyce  v. 


KEMOTE   A^SD   PKOXEVIATE   CAUSE. 


43 


Bayliffe,  1  Camp.  58;  inreU.  S.  Ser- 
vice Co.  Johnston's  Claim,  L.  R.  6 
Ch.  212;  Sharp  v.  Powell,  L.  R.  7  C. 
F.  253;  Swan  v.  North  British  Aus. 
Co.  limited  in  Ex.  Ch.  2  H.  &  C.  175; 
Burton  v.  Piukerton,  L.  R.  2  Ex. 
340;  Hoy  v.  Felton,  11  C.  B.  N.  S. 
142;  Ward  v.  Weeks,  7  Bing.  211; 
Parkens  v.  Scott,  1  H.  &  C.  153.  The 
case  of  Scott  v.  Shepperd,  2  W.  Bl. 
892,  3  Wils.  403,  1  Sm.  L.  C.  417,  was 
decided  upon  more  grounds  than 
one.  The  defendant  wrongfully  fii'st 
threw  the  squib.  WUlis,  to  prevent 
injury  to  him.  threw  it  off  as  it 
lighted  near  hiin,  and  Ryal  did  the 
same.  Tlie  last  throwing  by  Ryal 
did  the  injury  to  the  plaintiff.  The 
action  was  trespass  and  assault.  It 
was  held  that  the  original  throwing 
by  the  defendant  was  the  direct  and 
immediate  cause  of  damage  to 
plaintiff;  the  throwing  by  the  other 
two  in  self-defense  was  but  a  con- 
tinuation of  the  defendant's  act.  It 
was  also  said  tliat  the  defendant  was 
liable,  "  be  the  injury  mediate  or  im- 
mediate," because  he  was  a  wrong- 
doer. 

And  there  are  several  cases  which 
show  that  a  wi-ong-doer  is  liable 
for  all  damages.  Not,  however,  aU 
supposable  damages,  which  follow 
from  his  act,  whether  they  be  the 
direct  or  indirect  result  of  his  con- 
duct. Vandenburgh  v.  Traax,  4 
Denio,  464;  Smith  v.  Lon.  and  S. 
West.  R.  W.  Co.  L.  R.  5  C.  P.  98,  af- 
firmed, L.  R.  6  C.  P.  14,  and  Lee  v. 
RUey,  18  C.  B.  N.  S.  723.  On  a  con- 
sideration of  these  cases,  I  come  to  the 
conclusion  that  the  proximate  cause 
of  damages  as  against  the  defendants 
was  the  defective  state  of  the  high- 
way. 

If  some  one  had  wi-ongfuUy 
whipped  or  frightened  the  horse,  so 
that  the  damage  had  followed  from 
it,  that  wrong-doer  would  have  been 
liable  either  because  the  proximate 


cause  as  against  him  would  have 
been  his  improperly  whipping  or 
frightening  the  horse,  or  because 
being  a  wrong-doer,  he  would  be  Ua^ 
ble  for  all  the  consequences  which 
resulted  from  his  act,  whether  dam- 
age was  direct  or  indirect. 

In  that  case  there  would  have 
been  two  grounds  of  proximate 
damage,  and  the  parties  in  fault 
could  each  be  proceeded  against  for 
his  own  particular  act  or  wrong. 
There  are  not,  however,  two  sep- 
arate parties  here,  each  conducing 
to  the  damage. 

There  is  the  one  party  only,  as  the 
horse  was  frightened,  not  wilf uUy  by 
any  one,  but  from  mere  accident, 
and  tiie  defendants,  I  think,  are  di- 
rectly liable  for  the  injury  which 
was  done,  because  it  did  happen  by 
reason  of  the  defective  state  of  the 
road,  and  that  was  the  direct,  imme- 
diate and  proximate  cause  of  the 
damage. 

If  the  result  had  been  brought  about 
by  the  misconduct  or  negligence 
of  the  driver,  the  proximate  cause, 
in  my  opinion,  would  still  have  been 
the  defective  state  of  the  road.  I 
cannot  see  how  its  jjosition  can  be 
effected  by  any  antecedent  events 
whatever.  But  the  plaintiff  could 
not  have  recovei-ed,  because  it  would 
have  been  the  driver's  own  misman- 
agement which  contributed  and  led 
to  the  accident.  The  different  events 
must  be  looked  at  in  such  a  case,  for 
if  the  claimant  for  damages  be 
shown  to  liave  produced  a  particular 
state  of  things  by  his  own  act  or 
neglect,  he  cannot  blame  any  one 
for  the  consequences  which  have 
reasonably  followed  from  it.  He 
has  been  the  author  of  his  own  mis- 
fortune and  injury.  Adams  v.  Lane. 
&  Yorks.  R.  W.  Co.  L.  R.  4  C.  P. 
739.  As  a  recovery  could  have  been 
had  both  against  the  person  who 
wantonly  whipped   the    horse  and 


44 


COMPENSATION. 


made  it  unmanageable  and  against 
the  defendants  because  both  were 
■v\^rong-doers,  so  no  recovery  can  be 
had  against  the  defendants  when  the 
driver  produces  the  mischief  by  his 
OV5T1  misconduct,  because  he  and  the 
defendants  are  both  wrong-doers  in 
causing  the  result  and  are  in  law 
equally  culpable.  If,  therefore,  the 
plaintiffs  ai'e  entitled  to  have  and 
maintain  their  action  against  the  de- 
fendants because  the  state  of  the 
road  or  bridge  was  the  proximate 
cause  of  the  injury  or  would  have 
been  so  ia  certain  cases,  as  if  the 
bridge  had  given  away  from  decay 
while  the  plaintiffs  were  traveling 
over  it,  are  they  precluded  from 
maintaining  it  because  the  horse,  by 
reason  of  the  fright,  became  un- 
manageable and  backed  the  wagon 
over  the  bank  ? 

Several  American  decisions  were 
cited  on  the  argument  for  the  purpose 
of  showing  that  the  rule  in  some  of 
their  states  or  courts  is — "that  to 
maintain  an  action  of  the  kind  the 
plaintiff  must  prove  that  he  has  sus- 
tained an  injury  by  means  of  a  de- 
fect in  the  highway  while  he  was 
himself  using  due  care."  Davis  v. 
Inhabitants  of  Dudley,  4  Allen,  557. 
And  it  is  considered  the  plaintiff  did 
not  use  due  care  if  the  horse  from 
any  cause  whatever  became  uncon- 
trollable, and  while  it  was  in  that 
condition  the  accident  happened  by 
reason  of  a  defective  highway,  how- 
ever defective  the  highway  may 
have  been. 

In  the  case  just  referred  to,  the 
facts  were:  a  bolt  of  the  sleigh 
broke,  which  frightened  the  hoi'se; 
the  horse  got  detached  from  the 
sleigh  and  ran  away,  until  it  came 
upon  the  obstiniction  in  the  high- 
way and  broke  its  leg.  The  judge 
said  at  p.  558,  "The  horse,  after 
breaking  away  from  the  sleigh  and 
the  control  of  the  driver  was  not  the 


subject  of  any  care  whatever  up  to- 
and  at  the  moment  when  his  leg  was 
broken.  It  is  the  plaintiff's  misfor- 
tune that  by  the  imperfection  of  the 
bolt,  which  was  attributable  to  no  in- 
attention or  negligence  of  his  own,  an 
accident  occurred  by  means  of  which 
his  horse  "svas  separated  from  him, 
so  that  it  was  impossible  for  him 
afterwards  to  manage  or  take  any 
care  of  the  animal.  And,  therefore, 
he  can  maintain  no  action, 
because  he  is  unable  to  prove  a  mate- 
rial fact  essential  to  his  legal  right 
to  recover." 

And  again  he  says  at  p.  558 :  "  It  is 
n(>w  perfectly  well  settled  that  to 
maintain  an  action  of  this  kind,  it 
is  incumbent  upon  the  plaintiff  to 
prove  that  he  sustained  an  injury, 
.  .  .  by  means  of  a  defect  in  the 
highway  while  he  was  himself  using 
due  care." 

And  again  on  p.  560:  "The  effect 
of  the  accident  as  a  procuring  cause 
"W'as  complete  wlien  the  horse  .  .  . 
became  detached  from  the  sleigh  and 
had  escaped  from  the  control  of  the 
driver.  The  blind  violence  of  the 
animal,  acting  without  guidance  or 
direction,  became  in  the  course  and 
order  of  incidents  which  ensued,  the 
siipervening  and  proximate  cause  of 
the  injury  by  his  running  against 
the  wood-pile,  which  constituted  an 
unlawful  obstruction  and  defect  in 
the  highway.  In  this  succession  of 
events  it  happened  that  the  accident 
l^laced  the  owner  in  a  situation 
where  it  was  out  of  his  power  to  ex- 
ercise care  over  his  horse  ■while  this 
new  cavise  was  in  operation,  and  until 
it  had  contributed  to  produce  the  dis- 
aster by  which  Ms  leg  Avas  broken." 
I  have  quoted  this  at  length  because 
it  is  a  case  which  is  referred  to  in 
most  of  the  other  decisions. 

In  Titus  V.  Inhabitants  of  North- 
bridge,  97  Mass.  258,  the  horse  did 
not  run  away,  but  would  not  obey 


KEMOTE   AND    PEOXIMATE    CAUSE. 


45 


the  reins,  and  so  went  over  an 
unprotected  bank,  a  few  feet  in  de- 
scent, the  top  of  which  was  below  the 
level  of  the  highway,  and  the  whole 
of  wliich  bank  was  in  the  highway. 
There  it  was  said  the  plaintiff,  hav- 
ing lost  control  of  his  horse, could  not 
recover  unless  it  appeared  the  acci- 
dent would  equally  have  occurred  if 
the  horse  had  not  been  so  uncontrol- 
lable. This  case  does  not  therefore 
go  to  the  full  extent  of  Davis  v.  In- 
habitants of  Dudley. 

The  case  of  Horton  v.  City  of 
Taunton,  97  Mass.  266,  in  the  note,  is 
veiy  Uke  the  present  one,  for  there 
the  horse  was  frightened  while  on  a 
bridge  and  backed  several  rods  to  an 
unprotected  embankment  on  the 
road,  and  there  precipitated  the 
wagon  and  the  plaintiff  over  the 
bank;  and  it  was  held  the  plaintiff 
could  not  recover. 

The  court  said  in  Titus  v.  Inhabit- 
ants of  Northbridge,  at  p.  265:  "  The 
driver's  control  over  the  horse  was 
as  effectually  lost  in  this  case  as  in 
that  (Davis  v.  Inhabitants  of  Dud- 
ley), and  in  both  cases  the  action  of 
the  horse  after  he  became  uncon- 
trollable occasioned  the  injury." 

In  Marble  v.  Cit}^  of  Worcester,  4 
Gray,  395,  the  defect  in  the  highway 
frightened  the  horses  and  they  ran 
away,  and  after  running  fifty  rods 
they  ran  against  the  plaintiff  in  the 
highway  and  injured  him;  and  it 
was  held  the  plaintiff  could  not  re- 
cover. The  chief  justice  was  of 
opinion  there  was  too  great  a 
difference,  both  in  distance  and  in 
causation,  to  make  the  defect  in 
the  highway  the  proximate  cause  of 
the  plaintiff's  injury.  I  cannot  say 
the  case  is  very  well  reasoned. 
The  objection  as  to  the  distance,  it 
appears  to  me,  is  fully  answered  by 
the  chief  justice  himself  as  he  pro- 
ceeds in  his  judgment. 

Mr.  Justice  Thomas,  who  dissent- 


ed, said,  at  p.  409:  "  In  determining 
what  is  the  true  cause  of  a  given 
result,  where  two  or  more  causes 
seem  to  conspii'e,  the  reasonable  in- 
quiry, I  submit,  is,  not  which  is  the 
nearest  in  place  or  time,  but  whether 
one  is  not  the  efficient  procuring 
cause,  and  the  other  but  incidental. 
We  are  to  seek  the  efficient,  predom- 
inating cause,  and  not  merely  that 
\vhich  "was  in  activity  at  the  con- 
summation of  the  accident  or  loss." 

The  other  American  cases  on  the 
subject  are:  Smith  v.  Smith,  2  Pick. 
621;  Hyatt  v.  Trustees  of  Village  of 
Rondout.  44  Barb.  385;  Cobb  v.  Inhab. 
of  Standish,  14  Me.  198:  Sykes  v. 
Town  of  Paulet,  43  Vt.  446;  S.  C.  5 
Am.  R.  295;  Collins  v.  Inhab.  of  Dor- 
chester, 6  Cush.  396;  Sparhawk  v. 
City  of  Salem,  1  Allen,  30. 

In  case  of  Palmer  v.  Inliab.  of 
Andover,  2  Cush,  600,  where  the 
bolt  of  a  carriage  broke,  the  horse 
got  free  from  the  carriage  on  the 
descent,  the  carriage  by  its  own  mo- 
mentum ran  down  the  hill  and  over 
an  embankment  on  the  road,  Avhere 
there  was  not  sufficient  railing,  and 
injury  was  done;  and  it  was  held 
the  body  liable  for  defects  of  high- 
■way,  "was  answerable  for  the  damage 
done. 

That  case  is  got  rid  of  in  DaAas  v. 
Inhab.  of  Dudley,  by  saying  the  in- 
jury was  from  the  momentum  of 
the  carriage,  and  that  during  the 
whole  time  up  to  the  happening  of 
the  accident  the  plaintiff  was  using 
due  care  on  the  road.  The  due  care 
was  that  the  carriage,  by  its  mo- 
mentum, ran  off  with  the  people  in 
it,  and  was  so  uncontrollable  that  it 
could  not  be  stopped,  and  ran  over  a 
bank.  What  difference  there  is  be- 
tween the  due  care  of  a  runaway 
horse  and  a  runaway  carriage,  or 
between  the  momentum  of  the  one 
and  momentum  of  the  other,  in  law, 
I  do  not  know. 


46 


COMrENSATIOX. 


Upon  these  cases  it  is  contended 
by  the  defendants,  in  addition  to 
their  contention,  tliat  the  uncontrol- 
lable horse  was  the  proximate  cause 
of  the  injury  (which  we  have  dis- 
posed of);  that  because  the  horse  be- 
came, by  fright  and  accident  and 
from  no  fault  of  the  driver,  unman- 
ageable, the  plaintiffs  cannot  re- 
cover, inasmuch  as  they  were  con- 
tributory to  their  owii  wrong,  and 
were  not  using  the  road,  at  the  time 
of  the  accident,  with  due  care;  and 
that  the  defendants  were  not  bound 
to  repair  or  maintain  roads  or  bridges 
against  runaway  or  unmanageable 
horses.  It  may  be  quite  true  that  a 
bridge  or  culvert  need  not  be  con- 
structed with  that  degree  of  strength 
to  stand  the  weight  and  violence  of 
a  runaway  team  of  horses  with  a 
heavy  wagon;  but  it  is  very  plain, 
although  horses  and  convej-ances 
are  required  to  cross  a  bridge  on  the 
walk,  that  the  bridge  must  for  the 
public  safety  be  made  stronger  than 
wUl  just  permit  the  horse  or  team 
to  go  over  on  the  walk.  How  much 
stronger,  must  depend  on  circum- 
stances. 

In  my  opinion,  the  road  or  bridge 
must  be  reasonably  safe  for  the  pub- 
lic use;  and  if  it  be  not  so,  the  fact 
that  the  horse  was  running  away 
or  unmanageable  will  not  prevent 
the  person  injured  from  recovering 
for  the  damage  he  has  sustained.  It 
would  not  be  reasonable  to  hold  a 
municipality  liable  if  a  drove  of  cat- 
tle rushed  on  to  a  bridge  and  pressed 
off  the  railings,  or  by  their  weight 
and  violence  shook  it  or  broke  it  and 
it  fell,  and  many  of  them  were  in- 
jured and  killed.  The  bridge  could 
not  have  been  intended  to  meet  such 
an  occurrence,  any  more  than  it 
could  have  been  intended  to  bear  a 
heavy  steam-carriage  or  a  long  train 
of  artillery.  But  it  would  be  quite 
unreasonable  to  hold  that  it  would 


be  a  sufficient  answer  —  however 
crazy  the  bridge  or  however  scan- 
dalous tJie  state  of  the  road  was 
which  caused  the  injury, —  that  the 
horse  was  unmanageable,  although 
from  no  fault  of  the  driver,  at  the 
time  of  the  accident. 

The  fact  of  the  horse  by  accident 
becoming  unruly,  is  by  this  mode 
of  reasoning  looked  upon  as  a 
wrong  done  by  the  owner  to  some- 
body or  anybody.  It  is  not  pre- 
tended he  is  liable  to  a  person  whom 
the  horse  miglit  accidentally  injure. 
He  is  not  a  wrong-doer  to  that  ex- 
tent, but  it  is  said  he  is  a  wrong-doer 
so  as  to  be  precluded  from  any  re- 
covery against  the  municipality  by 
reason  of  his  particiisation  in  the 
injury  which  has  been  done.  He  is 
not,  I  conceive,  a  wrong-doer  at  all, 
upon  or  by  the  happening  of  such 
an  event.  And  the  municipality, 
which  is  a  wrong-doer,  has  no  one 
on  the  like  footing  as  themselves  — 
no  wrong-doer  to  share  in  the  injury 
with  them;  and  participation,  speak- 
ing generally,  confers  no  cause  of 
action,  but  desti'oys  it.  Marfell  v. 
South  Wales  R.  W.  Co.  8  C.  B.  N.  S. 
522,  is  expressly  in  point;  and  Head 
V.  Tattersall,  L.  R.  7  Ex.  7,  has  some 
application  to  it  also.  That  the 
plaintiffs  were  not  using  the  road  at 
the  time  with  due  care,  rests  on  the 
lilfe  unsound  basis  and  insupportable 
doctrine.  The  plaintiffs  were  using 
the  road  with  due  care.  Tliey  are 
not  responsible  for  accidents  of  the 
kind.  They  do  not  lose  all  right  to 
be  protected  because  they  have  been 
so  unfortunate  as  to  be  tlirown  from 
their  carriage  by  no  fault  of  their 
own,  and  against  which  accident 
they  could  not  guard;  and  wrong- 
doers, such  as  a  municipality  who 
have  roads  or  bridges  dangerous  to 
the  public,  are  not  to  rest  their  im- 
munity upon  the  disaster  of  the 
persons  who  have  been  injured  from 


KEMOTE   AND    PIIOXIMATE    CAUSE.                                      47 
Not   KECESSARY    that   the   P^UtTICULAK   LNJURY   BE    FOKESEEN. 

It  will  be  seen  from  a  perusal  of  the  cases  in  which  consequen- 
tial damages  have  been  allowed,  and  from  the  rule  or  principle 
on  which  they  are  allowed,  that  at  the  time  the  wrongful  act  is 
done,  it  need  not  be  certain  that  such  damages  will  ensue.  It  is 
required  that  the  act  have  a  tendency  and  be  likely  to  cause 
such  damages,  but  not  that  they  be  certain  to  follow ;  in  this 
respect  they  are  generally  contingent  and  by  possibility  may 
not  happen.  If  one  remove  or  destroy  a  fence  enclosing  a  field, 
or  open  a  gap  in  it,  there  is  a  possibihty  that  anunals  confined 
there  may  not  escape  so  as  to  encounter  a  danger  outside,^  or 
subject  the  owner  to  expense  in  recovering  them ;  ^  and  it  is 
possible  that  other  cattle  will  not  trespass  upon  such  field  to  de- 
stroy a  crop  there,^  or  to  do  injury  to  an  animal  there,*  or  to 
receive  injmy.^  But  the  wrong  done  in  opening  such  enclosure 
is  so  lilcel}''  to  lead  to  these  injurious  results,  that  they  are  prox- 
imate if  they  occur.  Opening  the  fence  does  not  cause  an 
animal  to  pass  through  it ;  it  offers  the  opportunity ;  opening 
the  fence,  according  to  circmnstances,  exposes  to  injury  property 
within  or  property  outside  of  it  —  or  both.  It  is  in  this  manner 
that  the  j^runar}^  and  efficient  cause  generally  produces  conse- 
quential damages.  The  party  injured  in  his  person  or  property 
is,  by  the  wrongful  act  of  another  or  his  culpable  negligence,  ex- 
posed or  left  in  exposure  from  some  cause  imminent  and  fairly 
obvious  in  existing  circumstances,  or  otherwise,  and  through 
such  exposure  the  injury  ultimately  and  proximately  reaches 

unavoidable  accident  and  from  no  And  the  defendants,  who  were  in 

fault  or  failure  on  their  part.  default,  sliould  not  be  allowed  to  say 

It  seems  strange  to   me  that  an  to  the  plaintiffs,  who  were  not  in 

admitted  culpable  neglect  can  be  ex-  fault,  that  the  injmy  was  caused  by 

cused  when,  and  I  might  almost  say  the  plaintiffs'  loss  of  control  of  the 

because,  the  other  party  is  no  way  horse,  and    not   by  their    own    de- 

in  fault;  or  that  the  municipality  fective  road." 

can  set  up,  as  a  condonation  of  their  '  Powell  v.  Salisbury,  2  Y.  &  J,  391 ; 

own  wrong,  the  misfortune  of  an-  White   v.    McXatt,    33    N.   Y.    371; 

other    who    has    suffered    involun-  Welch  v.  Piercy,  8  Ired.  L.  365. 

tarily  injury  at  their  hands.  ^  Bennett  v.  Lockwood,  20  AVend. 

But  for  the  defective  state  of  the  223. 

road  the  damage  now  complained  of  *  Scott  v.  Kenton,  81  111.  96. 

could    never    have    happened,   and  "^  Lee  v.  Riley,  81  C.  B.  (N.  S.)  722. 

there  is  in  this  case  no  other  culpa-  ^  Lawi-ence  v.  Jenkins,  L.  R.  8  Q. 

ble  act  to  which  it  can  be  attributed.  B.  27-i. 


48  COMPENSATION. 

liim.  The  wrongful  act  is  tlie  cause  of  the  injury  in  the  natural 
and  probable  course  of  events,  by  subjecting  the  party  injured 
unlawfully  to  other  and  dependent  causes  from  which  the  injury 
directly  proceeds.  In  this  way,  at  least,  the  relation  of  cause 
and  effect  must  be  established  between  the  wrongful  act  and 
the  injurious  consequence.^ 

The  owner  of  a  vessel  employed  in  building  a  sea  wall  was 
given  by  the  o'wner  of  the  wall  the  exclusive  right  to  its  use  as 
a  place  of  safety  for  his  vessel  in  case  of  a  storm.  The  master 
of  another  vessel,  without  permission,  placed  his  vessel  behind 
the  wall  and  refused  to  move  it  when  requested,  the  former 
desiring  to  place  his  vessel  there  as  a  place  of  safety  against  a 
storm.  This  vessel  was  sunk  by  the  storm  while  thus  excluded 
from  that  place  of  security.  The  sinking  of  the  vessel  was  held 
to  be  the  proximate  consequence  of  being  denied  the  shelter  of 
said  wall.- 

It  is  not  required  that  the  damages  be  foreseen,  as  conse- 
quential damages  from  a  breach  of  contract  must  be  contem- 
plated by  the  parties  when  they  enter  into  it.^  'Nov,  on  the 
other  hand,  wiU  the  wrongdoer  be  hable  to  every  possible 
damage  which  may  directly  and  indirectly  ensue  from  his 
misconduct.^ 

The  act  complained  of  must  be  the  efficient  cause. —  The 
defendant's  misconduct  must  be  the  efficient  cause  and  the  injmy 
which  follows  must  be  such  as  ought  to  have  been  foreseen  as  a 
probable  consequence  in  the  light  of  surrounding  circumstances. 
There  is  generally  another  and  more  immediate  cause  of  the 
injury,  and  the  primary  cause,  to  be  deemed  the  responsible  and 
efficient  cause  for  the  purpose  of  damages,  must  have  directly 
set  in  motion  an  intervening  and  more  immediate  agency,  or  be 
directly  in  fault  for  the  exposure  of  the  injured  party  to  its 
injurious  influence.  A  bridge  erected  over  a  slough  of  the 
Mississippi  river  and  a  part  of  the  highway  from  the  business 
part  of  the  city  of  Dubuque  to  a  levee  on  said  river,  became 
impassable  for  want  of  repairs ;  by  reason  of  which  the  owner 

>  Ohnstead  v.  Brown,  13  Barb.  657.  ^  Bowas  v.   Pioneer  Tow  Line,  2 

2  Deny  v.  Flitner,   18  Mass.    131;  Sawyer,  21. 

Tinsman  v.  Belvidere,  etc.  R.  R.  Co.  ^  Beach  v.  Ranney,  2  Hill,  314. 
26  N.  J.  L.  148. 


REMOTE    AND   PEOXIMATE   CAUSE. 


49 


of  a  lot  of  Tvood  wliich  had  been  collected  at  tlie  levee  for 
transportation  over  the  bridge,  was  unable  to  so  transport  it. 
While  lying  there  under  these  circumstances,  it  was  washed 
away  by  a  freshet.  The  damages  were  held  too  remote  to  be 
held  the  consequence  of  the  neglect  to  repair  the  bridge.^  The 
defendant's  neghgence  did  not  consequentially  cause  the  loss  of 
the  wood,  if  it  could  be  moved  to  a  place  of  safety  in  another 
direction ;  nor  was  the  loss  by  freshet  proximate,  unless  accord- 
ing to  the  general  experience  it  was  a  probable  occurrence. 

The  loss  of  an  oflBce,  as  the  result  of  an  assault  and  battery, 
has  been  held  too  remote,  and  too  much  the  result  of  other  and 
independent  causes  to  be  taken  into  consideration.^  So,  where 
the  defendant  hbeled  a  concert  singer,  who,  in  consequence,  re- 
fused to  sing  at  the  plaintiff's  oratorio,  for  fear  of  being  badly 
received.  It  was  held  that  this  damage  to  the  plaintiff  was 
not  sufficiently  connected  with  the  act  of  the  defendant.  The 
refusal  to  sing  might  proceed  from  groundless  apprehension,  or 
caprice,  or  some  cause  altogether  different.^ 


'  Dubuque,  etc.  Aaso.  v.  Dubuque, 
30  Iowa,  176. 

^  Brown  v.  Cummings,  7  Allen,  507; 
Boyce  v.  Baitiffe,  1  Camp,  58;  Hoey 
X.  Felton,  11  C.  B.  (N.  S.)  143;  Bur- 
ton V.  Pinkerton,  L.  R.  2  Ex.  340. 

^Ashley  v.  Harrison,  1  Esp.  48. 
In  Taylor  v.  Neri,  1  Esp.  386,  it  ap- 
peared that  the  defendant  beat  an 
actor  and  thereby  disabled  and  pre- 
vented him  from  performing  his  en- 
gagement witli  the  plaintiff.  It  was 
held  that  the  mjury  to  the  manager 
was  too  remote.  These  two  cases 
came  under  criticism  in  the  subse- 
quent case  of  Lumley  v.  Gye,  2  E. 
&  B.  216,  which  was  an  action  by 
the  manager  of  a  theatre  against 
the  manager  of  a  rival  theatre  for 
procuring  a  singer  to  break  her  en- 
gagement. The  circumstance  that 
the  plaintiff  had  an  action  against 
the  singer  herself  upon  lier  agree- 
ment was  overruled,  and  the  plaint- 
iff recovered,  on  the  principle  that 
the  defendant  incurred  the  same 
Vol.  1  —  4 


liability  for  interfering  with  such  a 
sei^vant  as  any  other.  Wightman,  J., 
said:  "  In  the  present  case  there  is 
the  mahcious  procurement  of  Miss 
Wagner  to  break  her  contract,  and 
the  consequent  loss  to  the  plaintiff. 
Why,  then,  may  not  the  plaintiff 
maintain  an  action  on  the  case? 
Because,  as  it  is  said,  the  loss  or 
damage  is  not  the  natural  or  legal 
consequence  of  the  acts  of  the  de- 
fendant. There  is  the  injuria,  and 
the  damnuna;  but  it  is  contended 
that  the  damnum  is  neither  the  nat- 
ural nor  legal  consequence  of  the 
injuria,  and  that,  consequently,  the 
action  is  not  maintainable,  as  the 
breaking  of  her  contract  was  the 
spontaneous  act  of  Miss  Wagner 
herself,  who  was  under  no  obligation 
to  yield  to  the  persuasion  or  pro- 
curement of  the  defendant.  An- 
other case  of  Vicars  v.  Wilcocks,  8 
East,  1,  which,  though  it  has  been 
brought  into  question  has  never 
been  directly  overruled,  was  relied 


60  COMPENSATION. 

A  lease  of  a  canal  was  made  by  commissioners  of  navigation 
under  a  statute  providing  that  if  the  lessee  should  permit  the 
work  to  be  out  of  repair  the  commissioners  should  give  the 
lessee  notice  to  repair,  and  on  his  neglecting  to  make  the  re- 
pairs, they  might  make  them  and  pay  the  expenses  out  of  the 
tolls.  A  lock  forming  part  of  the  canal  fell  and  detained  a 
barge.  In  an  action  for  that  detention  against  the  commis- 
sioners for  neglecting  to  give  notice  to  the  lessees  to  repau",  it 
was  held  that  the  actioii  would  not  lie,  because  the  detention 
was  not  a  damage  naturally  flowing  from  the  alleged  neglect,  it 
not  being  shown  that  if  such  notice  had  been  given  the  lessee 
would  have  repaired,  or  that  the  commissioners  would  have 
done  so.  Pollock,  C.  B.:  "To  say  that  the  damage  could  be 
the  consequence  of  the  wrongful  act  or  omission,  is,  in  our 
judgment,  to  assert  a  false  proposition  of  law.  The  surmise 
is, —  if  the  notice  had  been  given  the  repairs  would  have  been 
done  and  the  lock  would  not  have  fallen  in,  and  so  not  gi'sing 
notice  caused  the  lock  to  fall  in.  As  we  have  said,  this  is  not 
proved ;  but  it  is  not  the  proximate,  necessary,  or  natural  result 
of  not  giving  notice.  The  not  giving  notice  is  not  sufficient  to 
bring  about  the  result ;  the  giving  of  it  would  not  be  sufficient 
to  hinder  it."  ^  Here  the  immediate  cause  of  the  detention  was 
the  obstruction  and  want  of  repair  of  the  canal ;  the  alleged 

upon  as  an  aiithority  upon  this  to  refuse  to  deliver  goods  to  the 
point  for  the  defendant.  That  case,  plaintiff  by  asserting  that  he  had  a 
however,  is  cleai'ly  distinguishable  lien  upon  them,  and  ordering  these 
from  the  present  upon  the  ground,  persons  to  retain  the  goods  until 
suggested  by  the  Lord  Chief  Justice  further  orders  from  him.  It  was 
Tindal  in  Ward  v.  Weeks,  7  Bing.  ru-ged  for  the  defendant  in  that  case, 
211,  215,  that  the  damage  in  that  that,  as  the  persons  in  whose  cus- 
case,  as  well  as  in  Vicars  v.  Wilcocks,  tody  the  goods  were,  were  under  no 
was  not  the  necessary  consequence  legal  obligation  to  obey  the  orders  of 
of  the  original  slander  uttered  by  the  defendant;  it  was  a  mere  sponta- 
the  defendants,  but  the  result  of  neons  act  of  these  persons  which  oc- 
spontaneous  and  iinauthorized  com-  casioned  the  damage  to  the  plaintiff; 
munications  made  by  those  to  Avhom  but  the  court  held  the  action  main- 
the  words  were  uttered  by  the  de-  tainable,  though  the  defendant  did 
f  endants.  The  distinction  is  taken  make  the  claim  as  of  right,  he  bav- 
in Green  v.  Button,  2  C.  M.  &  R.  ing  done  so  maliciously,  and  without 
707,  in  which  it  was  held  that  an  ac-  any  reasonable  cause,  and  the  dam- 
tion  was  maintainable  against  the  age  accruing  thereby." 
defendant  for  maliciously  and  '  Walker  v.  Goe,  3  H.  &  N.  395. 
wrongfully  causing  certain  persons 


KEMOTE   AXD   PROXEVIATE   CAUSE.  51 

wrong  of  the  defendant  did  not  put  tlie  canal  out  of  repair, 
and  as  tlie  commissioners  were  required  to  do  nothing  abso- 
lutely but  give  notice,  as  a  step  towards  repair,  it  could  not  be 
assumed  as  matter  of  law  that  giving  the  notice  would  have 
caused  the  repair  to  be  made,  and  the  state  of  non-repair  to 
cease.  The  relation  of  cause  and  efiPect  between  the  wrongful 
act  and  the  alleged  mjurious  consequence  was  not  estabhshed. 
It  is  indispensable  that  the  plaintiff  should  show  not  only  that 
he  has  sustained  damage^  and  that  the  defendant  has  committed 
a  tort^  but  that  the  damage  is  the  clear  and  necessary  consequence 
of  the  tort,  and  that  it  can  be  clearly  defined  and  ascertained.^ 
An  action  on  the  case  was  brought  by  a  creditor  against  his 
debtor  and  another,  for  confederating  together  to  prevent  the 
plaintiff  from  obtaining  secm'ity  for  the  papnent  of  his  debt ; 
they  were  charged  with  having  accompUshed  that  wrong  by 
removing  the  debtor's  property  from  his  possession  to  that  of  his 
confederate,  who  secured  it  or  its  proceeds,  and  thus  prevented 
its  attachment.  The  plaintiff  had  obtained  judgment,  and  the 
debtor  had  reheved  himself  from  the  execution  against  his  body 
by  taking  the  poor  debtor's  oath,  and  the  debt  remained  wholly 
unpaid.  The  case  was  proved  except  the  conspiracy.  It  was 
held  that  the  action  could  not  be  maintained.  Among  other 
reasons  for  this  conclusion  was  the  uncertainty  of  the  plaintiff's 
damage.  Metcalf ,  J.,  said  :  "  How  could  this  plaintiff  prove 
that  he  suffered  any  damage  from  the  acts  of  the  defendant 
which  are  averred  in  the  declaration  ?  How  could  he  prove  that 
he  would  have  secured  his  debt  by  attaching  the  property  of 
his  debtor  if  the  defendant  had  not  intermeddled  with  it  ?  Other 
creditors  might  have  attached  it  before  him,  or  it  might  have 
been  stolen  or  destroyed  while  in  the  debtor's  possession.  The 
fact  that  the  plaintiff  has  suffered  actual  damage  from  the  de- 
fendant's conduct  is  not  capable  of  legal  proof,  because  it  is  not 
within  the  compass  of  human  knowledge,  and  therefore  cannot 
be  shown  by  human  testimony.  It  depends  on  numberless  un- 
known contingencies,  and  can  be  nothing  more  than  a  matter  of 
conjecture."  ^ 

'Lamb  t.  Stone,  11  Pick.  527;  nVellington  v.  Small,  3  Cush.  145. 
Vernon,  v.  Keys,  12  East,  633;  Mor-  InEandallv.  Hazelton,  12  Allen,  412, 
gan  V.  BUss,  2  Mass.  111.  a  mortgagee  voluntarily  promised 


52 


COMPENSATION. 


A  demurrer  was  allowed  to  a  declaration  which  stated  that 
the  defendant  and  a  confederate  conspired  to  obtain,  and  did 
obtain,  possession  of  a  portion  of  plaintiff's  premises  by  falsely 
pretending  that  it  was  wanted  for  a  lav^ful  trade,  and  then  set 
up  an  iUicit  still  there;  that  by  falsely  pretending,  and  by 
divers  false  and  fraudulent  means  and  devices,  they  made  it 
ajDpear  and  be  beheved   that  it  was  the  plaintiff  who  set  up 


the  mortgagor  not  to  act  under  a 
power  of  sale  contained  in  a  mort- 
gage without  a  notice  to  him;  he 
■was  afterwards  induced  by  the  false- 
hood of  the  defendants  to  assign  the 
mortgage  to  one  M.  for  their  benefit, 
and  then  caused  such  foreclosure  to 
take  place  in  a  manner  to  avoid 
notice  reaching  the  plaintiff,  who 
was  compelled  to  pay  five  hundred 
dollars  to  get  a  deed  of  the  property. 
The  case  was  determined  on  demur- 
rer against  the  plaintiff. 

The  promise  of  the  mortgagee  was 
gratuitous,  and  therefore  neither  he 
nor  an  assignee  would  do  any  legal 
wrong  by  foreclosing  according  to 
the  power  in  the  mortgage.  The 
damage  was  held  to  result  from  the 
foreclosure  and  not  from  the  alleged 
wrong.  "  Damages,"  say  the  court, 
"  can  never  be  recovered  where  they 
result  from  the  lawful  act  of  the  de- 
fendant." The  benefit  of  that  gra- 
tuitous promise  was  not  a  matter  of 
legal  right,  and  though  it  would  have 
been  kept  but  for  the  defendant's 
fraudulent  contract,  and  the  plaint- 
iff saved  from  the  loss  which  resulted 
from  the  sale,  yet  that  fraud  was 
not  actionable  because  it  did  not  af- 
fect any  legal  right;  it  could  not  be 
said  to  be  an  invasion  of  such  a  right 
"to  deprive  the  plaintiff  even  by 
falsehood  of  the  benefit  of  this  gra- 
tuitous undertaking."  The  court 
say:  "In  the  Tunbridge-Wells  Dip- 
pers' case,  2  Wils.  414,  while  the 
court  remark  that  there  was  a  real 
damage  in  depriving  the  plaintiff  of 


some  gratuity,  they  also  say  in  the 
same  sentence  that  the  injury  was 
by  disturbing  the  dippers  in  the  ex- 
ercise of  their  right  or  employment, 
which  it  seems  by  some  statutes  they 
were  entitled  to."  Hutchins  v. Hutch- 
ins,  7  Hill,  104. 

In  Bradley  v.  FuUer,  118  Mass.  239, 
the  court  stated  the  material  allega- 
tions of  the  declaration,  w^hich  was 
held,  on  demurrer,  not  to  state  a 
caiise  of  action,  to  be  that  the  de- 
fendant orally  represented  to  the 
plaintiff  that  a  corporation  of  which 
he  was  treasurer,  and  whose  over-due 
note  the  plaintiff  then  held,  owed  no 
other  debts,  and  had  no  attachments 
upon  its  property;  that  the  repre- 
sentation was  fraudulently  and 
falsely  made  for  the  purpose  of  in- 
ducing the  plaintiff  not  to  commence 
suit  ui)on  his  note  until  the  corporate 
property  could  be  placed  beyond  the 
reach  of  attachment  by  the  plaintiff; 
that  all  the  property  of  the  company- 
was  afterwards  attached  and  sold 
on  execution  upon  another  debt;  and 
that  the  plaintiff,  induced  by  the 
representations  not  to  enforce  his 
claim  by  suit,  lost  his  debt  against 
the  company.  In  one  count  the 
plaintiff  states  that  he  "was  in- 
duced to  forbear  securing  payment 
of  his  note  by  an  attachment  of  said 
property,  as  he  raight  and  would 
have  done  but  for  said  false  repre- 
sentation." The  court  say:  "Under 
the  law  as  laid  down  by  this  court, 
the  facts  stated  in  these  counts 
do  not  show  a  legal  cause  of  action, 


KEMOTE   AND   PEOXEVIATE    CAUSE. 


53 


such  still  and  was  the  proprietor  thereof ;  that  thereby  he  was 
convicted  of  keeping  illicit  stills.  It  was  held  that  the 
damage  was  not  the  natural  and  proximate  consequence  of  the 
defendant's  act.^ 

Where  a  trespassing  horse  kicked  a  child,  the  court  held  that 
the  injury  was  not  the  natural  consequence  of  the  trespass,  in 
the  absence  of  evidence  that  the  defendant  knew  that  the  horse 
was  vicious.  The  court  said  to  entitle  the  plaintiff  to  maintain 
an  action  it  is  necessary  to  show  a  breach  of  some  legal  duty 
due  from  the  defendant  to  the  plaintiff.  And  if  there  was  neg- 
ligence on  the  part  of  the  owner  of  the  horse  in  permitting  him 
to  be  at  large,  it  did  not  appear  to  be  connected  with  the  dam- 
age of  which  the  plaintiff  complains.  "  The  owner  of  a  horse 
must  be  taken  to  know  that  the  animal  will  stray  if  not  prop- 
erly secured,  and  may  find  its  way  into  his  neighbor's  corn  or 
pasture.  For  a  trespass  of  that  kind  the  owner  is  of  course 
responsible.     But  if  the  horse  does  something  which  is  quite 


or  that  the  plaintiff  has  suffered  any 
legal  damage.  Tliere  is  no  attach- 
ment or  attempt  to  attach,  on  the 
part  of  the  plaintiff,  alleged;  it  does 
not  appear  that  by  reason  of  the 
alleged  representations  he  lost  any- 
thing which  he  ever  had.  Taking 
these  counts  in  the  most  favorable 
sense  for  the  plaintiff,  they  simply 
charge  that  the  plaintiff,  induced  by 
the  falsehood  alleged,  refrained  from 
carrying  into  effect  an  intention  to 
attach;  and  that  another  creditor 
did  attach  and  apply  the  company's 
property  to  the  payment  of  his  debt. 
It  must  necessarily  be  uncertain 
■whether  the  plaintiff  would  have 
attached  the  property  and  applied  it 
to  the  payment  of  his  debt  if  the  al- 
leged representation  had  not  been 
made."  It  seems  to  the  writer  that 
this  case  was  erroneously  decided. 
The  law  recognizes  the  value  of  the 
preference  w^hich  one  creditor  by 
diligence  may  obtain  by  a  first  at- 
tachment of  the  property  of  an  in- 
solvent debtor.     Its  practical  value 


was  illustrated  by  that  case.  Tlie 
debtor  was  liable  to  attachment,  and 
had  pi-operty.  The  plaintiff  alleged 
that  he  might  and  would  have  at- 
tached it  but  for  the  fraudulent 
misrepresentations.  The  court,  on 
demurrer,  held  it  "  necessarily  un- 
certain "  that  this  purpose  would  be 
executed;  and  so  much  so,  that  the 
law  will  not  accept  the  allegation  as 
stating  a  provable  fact,  and  it  is 
therefore  not  admitted  by  a  demur- 
rer. It  certainly  cannot  be  main- 
tained, as  a  matter  of  law,  that  no 
damages  can  be  recovered  on  the 
basis  of  frustrating  an  intention,  the 
carrying  out  of  which,  in  the  future, 
is  lawful,  and  would  secure  an  ad- 
vantage or  prevent  a  loss.  That  it 
may  be  proved  that  an  intention 
will  be  carried  out  where  the  party 
has  the  ability,  and  his  interest  re- 
quires it  to  be  executed,  is  legally 
assumed  in  a  multitude  of  cases. 

•  Barber  v.  Leeiter,  7  C.  B.  N.  a 
175. 


54  COMPENSATION. 

contrary  to  his  ordinary  nature,  something  which  his  owner  has 
no  reason  to  expect  him  to  do,  he  has  the  same  sort  of  protection 
that  the  owner  of  a  dog  has,  and  everybody  knows  that  it  is 
not  at  all  the  ordinary  habit  of  a  horse  to  kick  a  child  on  a 
highway.  It  was  assumed  that  the  injury  to  the  plaintiff  was 
caused  by  the  horse  having  viciously  kicked  him,  as  a  horse  of 
ordinary  temper  would  not  have  done ;  therefore  the  plaintiff 
was  bound  to  show,  and  did  not,  that  the  defendant  knew  that 
the  horse  was  subject  to  that  infirmity  of  temper."  ^  In  a 
subsequent  case,  a  mare  strayed  into  the  plaintiff's  pasture,  and 
there  from  some  unexplained  cause  kicked  the  plaintiff's  horse 
and  broke  his  leg,  and  he  was  necessarily  killed.  Erie,  C.  J.: 
"  The  contest  at  the  trial  seems  to  have  been  whether  or  not 
the  mare  was  of  a  ferocious  or  vicious  disposition,  and  whether 
the  defendant  knew  it.  But  I  think  it  was  not  necessary  to 
go  into  that  question,  because  the  act,  which  upon  the  evidence 
must  be  presumed  to  have  caused  the  injury,  was  not  one  which 
was  characteristic  of  vice  or  ferocity  in  the  mare  in  the  ordi- 
nary sense.  The  animal  had  strayed  from  its  own  pasture ;  and 
it  was  impossible  that  her  owner  could  knoAV  how  she  would  act 
when  coming  suddenly  in  the  night  time  into  a  field  among 
strange  horses.  That  constitutes  the  difference  between  this 
case  and  those  rehed  on  by  the  defendant,  and  supports  the 
summing  up  of  the  judge  when  he  said  it  was  not  a  question 
of  vice  or  scienter  in  the  ordinary  sense."  The  defendant  was 
held  responsible  for  the  mare's  trespass,  and  the  damage  was  not 
remote.'- 

Upon  the  trial  for  enticement  of  servants  from  the  employ- 
ment of  another,  it  was  held  erroneous  to  permit  evidence  of  con- 
sequential damages  to  go  to  the  jury,  to  the  effect  that  the 
servants  he  first  employed  had  provisions,  and  those  he  subse- 
quently employed  to  take  their  places  had  not,  by  which  he  was 
compelled  to  furnish  provisions,  and,  making  a  poor  crop,  such 
persons  were  unable  to  pay  hhn  for  the  provisions  furnished,  out 
of  their  share  of  the  crop,  by  which  he  was  damaged.^ 

'  Cox  V.  Burbidge,  13  C.B.  N.  S.  430;  Barnes  v.  Cliapin,  4  Allen,  444;  Dun- 
Jackson  v.  Smithson,  15  M.  &W.  563;  kle  V.  Kocker,  11  Barb.  387;  Lyon 
Hudson  V.  Roberts,  6  Ex.  Cb.  697.  v.  Merrick,  105  Mass.  71. 

2  Lee  V.  Riley,  18  C.  B.  N.  S.  723;  sg^^tton  v.  Howard,  43  Ga.  600. 


REMOTE  AND  PKOXIMATE  CAUSE.  5D 

Whenever  an  action  is  brought  for  breach  of  duty  imposed  by 
statute,  the  party  bringing  it  must  show  that  he  had  an  interest 
in  the  performance  of  the  duty,  and  that  the  duty  was  im- 
posed for  his  benefit.  But  where  the  duty  was  created  or  im- 
posed for  the  benefit  of  another,  and  the  advantage  to  be 
derived  to  the  party,  complaining  of  its  breach,  from  its  per- 
formance, is  merely  incidental,  and  no  part  of  the  design  of 
the  statute,  no  such  right  is  created  as  forms  the  subject  of  an 
action.  A  private  person  might  make  a  profit  by  the  perform- 
ance of  the  duty,  but  the  breach  of  that  duty,  while  it  would 
naturally  deprive  him  of  that  benefit,  is  not  a  wrong  to  him. 
The  loss  of  such  a  benefit  is  not  in  a  legal  sense  an  injmy.  The 
loss,  though  actual,  is,  in  such  a  case,  not  a  legal  consequence  of 
the  delinquency.  Thus  a  postmaster  bound  by  an  act  of  con- 
gress to  advertise  lettere,  uncalled  for,  in  a  newspaper  of  a  par- 
ticular description,  commits  no  legal  wrong  to  the  proprietor  of 
such  a  paper  when  the  postmaster  omits  such  publication,  or 
gives  the  business  to  a  paper  of  a  diiferent  description.^ 

Where  the  j^laintlff  sustains  injury  from  the  defendants  gojv- 
duct  to  a  tldrd  i^erson^  it  is  too  remote^  if  the  plaintiff  sustains  no 
other  than  a  contract  relation  to  such  thn-d  person,  or  is  under 
€ontract  obhgation  on  his  account,  and  the  injury  consists  only 
in  impau'ing  the  abihty  or  inclination  of  such  third  person  to 
perform  his  part,  or  in  increasing  the  plaintiff's  expense  or  labor 
of  fulfilling  such  contract,  unless  the  wrongful  act  is  ^^dllful  for 
that  purpose.^  A,  who  had  agreed  with  a  town  to  support  for 
a  specific  time,  and  for  a  fixed  sum,  all  the  to^^^l  paupers,  in  sick- 
ness and  in  health,  Avas  held  to  have  no  cause  of  action  against 
S  for  assaulting  and  beating  one  of  the  paupers,  whereby  A 
Avas  put  to  increased  expense.  The  damage  Avas  held  too  remote 
and  indirect.^  A  stocldiolder  in  a  bank  cannot  maintain  an  ac- 
tion against  its  directors  for  their  negligence  in  so  conducting 
its  affairs  that  its  Avhole  capital  stock  is  wasted  and  lost,  and  the 
shares  therein  rendered  worthless ;  nor  for  the  malfeasance  of 
the  directors  in  deleo-atino^  the  whole  control  of  the  affau's  of  the 
bank  to  the  president  and  cashier,  who  waste  and  lose  the  whole 
•capital.^    The  dh'ect  injury  is  to  the  corporation,  and  only  re- 

'  Strong  V.  CampbeU,  11  Barb.  135.  =>  Anthony  v.  Slaid,  11  Met.  290. 

2  Lumley  v.  Gye,  3  El.  «&  Bl.  216.  *  Smith  v.  Hurd,  12  Met.  371. 


56  COMPENSATION. 

motely  to  the  stockholders.  The  latter  have  a  remedy,  in 
theory,  though  often  inadequate,  in  the  power  of  the  corpora- 
tion, in  its  corporate  capacity,  to  obtain  redress  for  injiu'ies  done 
to  the  common  property  by  the  recovery  of  damages.^  A  party 
who,  by  contract,  was  entitled,  he  furnishing  the  raw  material,  to 
all  the  articles  to  be  manufactured  by  an  incorporated  company, 
was  held  not  entitled  to  maintain  an  action  against  a  wrong- 
doer who,  by  trespass,  stopped  the  company's  machinery,  so 
that  it  was  prevented  from  furnishing,  under  that  contract, 
manufactured  goods  to  so  great  an  extent  as  it  otherwise  would 
have  done.^  A  creditor  can  maintain  no  action  against  one  who 
has  forged  a  note,  by  which  the  dividends  from  an  estate  were 
diminished.^  An  insurance  company  cannot  recover  from  a 
wrongdoer,  who  causes  the  loss  insured  against,  the  money  paid 
to  satisfy  such  loss.*  A  man  di\af ted  into  the  military  service  of 
the  United  States,  deserted,  and  another  who  had  been  drawn  as 
an  alternate  to  serve  in  such  a  contingency,  and  was  conse- 
quently obhged  to  serve  and  did  serve,  was  held  to  have  no 
legal  claim  against  the  deserter  for  the  loss  and  injury  of  being 
obliged  to  serve  under  such  circumstances.^ 

'No  LiABiLrrv  where  the  defendant's  act  becomes  injurious 
BY  EXTEAOEDiNARY  CIRCUMSTANCES. —  There  must  uot  ouly  be  a 
legal  connection  between  the  injury  and  the  act  complained  of, 
but  such  nearness  in  the  order  of  events  and  closeness  in  the  re- 
lation of  cause  and  effect,  that  the  influence  of  the  injurious  act 
may  predominate  over  that  of  other  causes,  and  shall  concur  to 
produce  the  consequence,  or  ma}^  be  traced  to  those  causes.  To 
a  sound  judgment  must  be  left  each  particular  case.  The  con- 
nection is  usually  enfeebled  and  the  influence  of  the  injurious 
act  controlled,  but  not  alwa3^s,  where  the  wrongful  act  of  a 
third  person  intervenes,  and  where  any  new  agent  introduced, 
by  accident  or  design,  becomes  more  powerful  in  producing  the 
consequence  than  the  first  injurious  act.  The  requu-ement  that 
the  consequences  to  be  answered  for  should  be  natural  and  prox- 

1  Smith  V,  Hurcl,  12  Met.  371.  ■•  Eockingham  &  Co.  v.  Bosher,  39 

2  Dale  V.  Grant,  34  N.  J.  L.  142.  Me.  253;  Connecticut,  etc.  Co.  v.  N. 
s  Cunningham  v.  Brown,   18  Vt.      Y.  etc.  R.  R.  Co.  25  Conn.  265, 

123.  ^  Jemmison  v.  Gray,  29  Iowa,  537. 


REMOTE    AKD    PROXIMATE   CAUSE.  5Y 

imate  is,  not  that  they  should  be  such  as  upon  a  calculation  of 
chances  would  be  found  likely  to  occur,  nor  such  as  extreme 
prudence  would  anticipate,  but  only  that  they  should  be  such  as 
have  actually  ensued,  one  from  another  without  the  occmrence 
of  any  such  extraordinary  conjuncture  of  circmnstances,  or  the 
intervention  of  such  an  extraordinary  result,  as  that  the  usual 
course  of  nature  should  seem  to  have  been  departed  from,^  The 
general  rule  is  that  a  defendant  is  not  answerable  for  anything 
beyond  the  natural,  ordinary  and  reasonable  consequences  of  his 
conduct.^  We  are  not  to  hnk  together  as  cause  and  effect 
events  having  no  probable  connection  in  the  mind,  and  which 
could  not,  by  prudent  circumspection,  and  ordinary  thoughtful- 
ness,  be  foreseen  as  likely  to  happen  in  consequence  of  the  act 
in  which  we  are  engaged.  It  may  be  true  that  the  injury  would 
not  have  occurred  without  the  concurrence  of  our  act  "svith  tho 
event  which  immediately  caused  the  injur}^,  but  we  are  not 
justly  called  to  suffer  for  it  unless  the  other  event  was  the  effect 
of  our  act,  or  was  within  the  probable  range  of  ordinary  circum- 
spection when  engaged  in  the  act.  If  one's  fault  happens  to 
concur  with  something  extraordinary,  and  therefore  not  likely 
to  be  foreseen,  he  will  not  be  answerable  for  such  unexpected 
result.^ 

An  injury  by  negligence  was  done  to  wool  by  wetting  it, 
rendering  it  necessary  to  take  it  out  of  the  original  packages  in 
which  it  had  been  imported.  In  a  few  weeks  afterwards,  an  act 
of  congress  was  passed,  under  which,  if  the  wool  had  remained 
in  the  original  packages,  the  plaintiff  would  have  been  entitled 
to  a  return  of  duties.  It  was  held  that  the  loss  of  the  right  to 
claim  a  return  of  duties  was  not  recoverable  as  a  proximate 
consequence  of  the  negligence.  It  was  remarked  that  if  the 
market  value  of  the  wool,  in  the  original  packages,  had  been 
higher  by  reason  of  it  being  entitled  to  debentm-e,  under  the 
laws  existing  at  the  time  when  the  injury  was  done,  the  plaint- 
iff would  have  had  a  right  to  an  increase  of  damages  in  con- 

'  Harrison  V.  Berkley,  1  Strobt.  L.         ^McGrew  v.    Stone,   supra;  Fair- 

525,  549.  banks  v.  Kerr,  70  Pa.  St.  86;  People 

•^  Bennett  v.  Lockwood,  20  Wend.  v.  the  Mayor,  etc.  of  Albany,  5  Lans. 

223;    Grain  v.   Petrie,   6    Hill,   523;  52-1. 
McGrew  v.  Stone,  53  Pa.  St.  436. 


58  COMPENSATION. 

sequence  of  being  obliged  to  break  the  packages ;  so  if  the 
market  vahie  had  been  enhanced  at  that  time  by  reason  of  a 
general  expectation  that  an  act  of  congress  would  be  passed 
allowing  a  return  of  duties.' 

In  trespass  for  taking  two  horses,  a  wagon  and  double  harness, 
the  declaration  stated  as  special  damage  occasioned  by  the  tak- 
ing, that  when  it  occurred  the  plaintiff  was  moving  with  his 
family  and  household  goods  to  another  state,  and  was  employ- 
ing his  horses,  wagon  and  harness  for  that  purpose  ;  that  he  was 
thereby  prevented  from  pursuing  his  journey,  and  put  to  great 
expense  for  the  support  of  himself  and  family ;  that  when  the 
property  was  taken  the  roads  were  frozen,  and  the  travehng 
good ;  but  while  the  property  was  detained  the  frost  left  the 
ground,  and  the  roads  became  so  muddy  that  it  was  quite  im- 
possible for  the  plaintiff  to  prosecute  his  journey,  by  reason 
whereof  the  plaintiff  was  detained  with  his  family,  and  pre- 
vented from  putting  in  liis  spring  crops  in  the  state  to  which  he 
was  moving.  It  was  held  erroneous  to  admit  evidence  of  these 
various  circumstances.  The  court  recognized  the  rule  that  to  be 
recovered  the  damages  must  be  the  natural  and  proximate  con- 
sequence of  the  act  complained  of,  but  it  was  said  "  no  case  can 
be  found  where  a  mere  accident  or  event  not  resulting  naturally 
from  the  act  done  by  the  defendant,  has  been  held  sufficient  to 
constitute  a  valid  claim  for  damages."  ^  The  law  is  correctly 
stated,  but  in  other  cases  there  has  been  recovery  for  some  of 
the  damages  here  stated.  In  the  plaintiff's  predicament,  in- 
creased expenses  and  loss  of  tmie  were  necessary  results  of  the 
taking  of  the  property. 

In  an  English  case,^  the  plaintiff  took  passage  to  Australia  in 
the  defendant's  vessel,  but  he  was  not  allowed  to  sail  on  account 
of  a  mistaken  belief  that  he  had  not  paid  his  entire  fare.  The 
error  was  found  out  immediately,  and  he  was  offered  a  passage 
in  a  ship  which  sailed  in  a  week  after  the  first.  Instead  of 
going  by  it,  however,  he  remained  in  England  to  a  later  time  to 
sue  the  defendant.  It  was  held  that  the  expense  of  his  keep  till 
trial  could  not  be  allowed  as  damages,  since  he  might  have  gone 
earher  if  he  had  wished. 

1  Stone  V.  Codman,  15  Pick.  297.  '  Ansett  v.  Marshall,  32  L.  J.  Q. 

2  Vedder  v.  Hildreth,  2  Wis.  427.         B.  118. 


EEMOTE    AND   PKOXIiLATE    CAUSE.  59 

Goods  carried  in  a  canal  boat  were  injured  by  the  wreck- 
ing of  the  boat,  caused  by  an  extraordinary  flood,  Avhich 
would  not  have  been  encountered  but  for  a  retarded  passage 
in  consequence  of  the  carrier  employing  a  lame  horse.  This 
fault  was  so  unhkely  to  conduce  to  such  an  event,  that  it  was 
held  that  he  Avas  not  liable  for  the  loss.^  A  carrier  was  guilty 
of  a  negligent  delay  of  six  days  in  transporting  wool  from 
Suspension  Bridge  to  Albany,  and  while  in  his  depot  at  the  lat- 
ter place,  a  few  days  after,  it  was  submerged  by  a  sudden  and 
violent  flood  in  the  Hudson  river.  The  flood  was  held  to  be 
the  proximate  cause  of  the  injury,  and  the  delay  in  the  trans- 
portation a  remote  cause.^  The  same  rule  has  been  appHed 
where  there  is  neghgent  delay  in  dispatching  goods  by  a  carrier, 
and  they  are  lost  while  in  his  hands,  by  flood  or  sudden  storm,  or 
other  unmediate  cause ;  the  damages  occmTing  without  his  fault, 
he  is  not  responsible.^ 

In  some  cases  in  Xew  York,  a  different  conclusion  has  been 
reached  in  similar  cases.  In  one  it  was  held  that  when  a  carrier 
is  entrusted  with  goods  for  transportation,  and  they  are  injured 
or  lost  on  the  transit,  the  law  holds  him  responsible  for  the  in- 
jury. He  is  only  exempted  by  showing  that  the  injury  was 
caused  by  an  act  of  God  or  the  pubhc  enemy.  And  to  avail 
himself  of  such  exemption,  he  must  show  that  he  was  himself 
free  from  fault  at  the  time.  His  act  or  neglect  must  not  concur, 
and  contribute  to  the  injury.  If  he  departs  from  the  line  of  his 
duty  and  violates  his  contract,  and  while  thus  in  faidt,  and  in 
consequence  of  that  fault,  the  goods  are  injm'ed  by  the  act  of 
God,  which  would  not  otherwise  have  caused  the  injury,  he  is 
not  protected.  There  was  unreasonable  delay  on  the  part  of 
the  carrier,  in  forwarding  goods,  and  while  they  were  in  a  rail- 
road depot  at  an  intermediate  point,  they  were  injured  by  an 
extraordinary  flood;  the  carrier  was  held  liable  because  the 
goods  were  exposed  to  the  flood  by  his  fault.'* 

These  cases  relating  to  carriers,  or  others  held  to  an  absolute 
responsibihty,  except  as  reUeved  by  showing  that  the  injury 

1  Morrison  v.  Davis,  20  Pa.  St.  171.  176;  Daniel  v.  Ballentine,  23  Ohio  St. 

^Dejiney  v.  N.  Y.  Cent.  R.  R.  Co.  523;  Hoadley  v.  Northern  T.  Co.  115 

13  Gray,  481.  Mass.  304. 

3 Railroad  Co.  v.  Reeves,  10  WaU.  "Read  v.  Spaulding,  30  N.  Y.  630. 


60 


COMPENSATION. 


was  caused  by  the  act  of  God,  are  not  wholly  controlled  by  the 
consideration  of  the  nearness  of  the  injury  to  the  fault.  Davies, 
J.,  said  :  "  It  is  to  be  observed  that  the  foundation  of  this  ex- 
emption is,  that  the  party  claiming  the  benefit  and  appHcation 
of  it,  must  be  without  fault  on  his  part."  He  refers  to  several 
cases.^  "  These  cases,"  he  continues,  "  clearly  estabhsh  the  rule 
that  the  carrier  cannot  avail  himself  of  the  exception  to  his 
liability,  which  the  law  has  created,  unless  he  has  been  free  from 
negligence  or  fault  himself.  The  policy  of  the  law  is  to  hold  him 
to  a  strict  hability ;  and  this  policy,  for  wise  and  just  purposes, 
ought  not  to  be  departed  from.  But  when  the  injury  occurs 
from  a  cause  which  the  carrier  could  not  guard  against,  nor  pro- 
tect himself  from,  from  such  an  event  the  law  excuses  him,  but 
it  only  does  it  when  he  himself  is  not  in  fault  and  is  free  from 
all  nef]:lio;ence."  ^ 


^  Davis  V.  Garrett,  6  Bing.  716. 
In  this  case,  the  plaintiff  put  on 
boai'd  tiie  defendant's  barge,  hnie  to 
be  conveyed  from  Medway  to  Lon- 
don. The  master  of  the  barge  de- 
viated unnecessarily  from  the  usual 
course,  and  during  the  deviation,  a 
tempest  wetted  the  lime,  and  the 
barge  thereby  taking  fire,  the  whole 
was  lost,  and  he  was  held  liable. 
Tindal,  C.  J.,  observed  that  no 
wrongdoer  can  be  allowed  to  appor- 
tion or  qualify  his  own  wrong,  and 
that  as  a  loss  had  actually  happened 
whilst  his  wrongful  act  was  in  oper- 
ation and  force,  and  which  was  at- 
tributable to  his  wrongful  act,  he 
could  not  set  up,  as  an  answer  to  the 
action,  the  bare  possibility  of  a  loss 
if  his  wrongful  act  had  never  been 
done.  It  might  admit  of  a  different 
constriiction  if  he  could  show  not 
only  that  the  same  loss  might  have 
happened,  but  that  it  must  have  hap- 
pened, if  the  act  complained  of  had 
not  been  done.  The  Charleston 
Steamboat  Co.  v.  Baron,  1  Harp.  262; 
Campbell  v.  Masse,  1  Harp.  468;  Bell 
V.  Reed,  4  Binn.  127;  Hart  v.  Allen, 
2  Watts,  114;  Hand  v.    Boynes,  4 


Whart.  204;  WiUiams  v.  Grant,  1 
Conn.  487;  Crosby  v.  Fitch,  12  Conn. 
410. 

2  In  Parmalee  v.  Wilks,  22  Barb. 
539,  the  plaintiff  being  the  owner  of 
a  raft  of  saw  logs,  lying  at  Port 
Maitland,  Canada,  made  a  contract 
with  the  defendants,  who  were  the 
owners  of  a  steamboat,  by  which  it 
was  agreed  that  the  defendants 
would  come  to  Port  Maitland  on  the 
next  Tviesday  morning,  with  the 
steamboat,  and  would  proceed  up  the 
river  about  five  miles  to  D,  and  there 
land  her  passengers,  and  immediate- 
ly return  to  Port  Maitland  and  take 
the  plaintiff's  raft  in  tow  and  tow  it 
to  Black  Eock,  a  distance  of  about 
forty  miles,  which  the  steamboat 
could  traverse  in  about  fourteen 
hours,  with  the  raft  in  tow.  The 
usual  time  for  the  arrival  of  the 
steamboat  at  Port  Maitland,  upon 
her  trip  up,  was  three  o'clock  in  the 
morning,  and  it  generally  took  about 
two  hours  to  proceed  to  D,  land  her 
passengers  and  return  to  Port  Mait- 
land. On  Tuesday  morning  the 
weather  was  fair,  and  the  lake  and 
river  were  calm,  and  so  continued 


EEISrOTE    AND    PEOXIMATE    CAUSE. 


61 


It  has  been  lield  in  IsTevada,  that  if  an  administrator  deposits 
money  of  an  estate  in  a  bank,  and  allows  it  to  remain  after  the 
time  when  it  should,  by  punctual  performance  of  his  duty,  have 
been  distributed  and  in  the  hands  of  those  entitled  to  it,  and 
the  bank  fails  and  the  money  is  lost,  he  and  his  sureties  are 
liable  therefor,  and  the  smn  so  lost  is  the  measure  of  damages.' 

It  is  immaterial  what  is  the  intennediate  cause  between  the 
act  complained  of  and  the  injurious  consequence,  if  such  act 
is  the  efficient  and  prominent  cause,  and  the  consequence  was 
the  probable  result.  There  may  be  intervening  operations  of 
nature,  acts  produced  by  the  volition  of  animals  or  of  human 
beings,  innocent  acts  of  the  injm'ed  party  or  of  third  persons, 
and  even  tortious  acts  of  the  latter,  and  the  chain  of  cause  and 
effect  not  be  necessarily  broken,  or  the  result  rendered  remote. 
The  test  is  not  to  be  found  in  any  arbitrary  number  of  inter- 
vening events  or  agents,  but  in  their  character,  and  in  the  nat- 
ural and  probable  connection  between  the  wrong  done  and  the 
injury.^ 


through  the  day.  But  the  boat 
failed  to  call  for  the  raft,  according 
to  the  agreement.  In  the  evening, 
about  sunset,  she  returned,  and  took 
the  raft  in  tow,  for  Black  Eock. 
During  the  night  a  storm  arose,  and 
the  i-aft  went  to  pieces  and  was  scat- 
tered along  the  shore.  Held,  that 
had  the  defendants  entered  upon  the 
performance  of  the  contract  at  the 
tune  specified,  and  used  proper  dili- 
gence in  attempting  to  perform  it, 
the  plaintiff  would  have  taken  all 
the  risk  of  storms  or  otlier  casualties. 
But  as  the  defendants  delayed  for 
some  fourteen  hours  to  enter  upon 
the  performance  of  the  contract,  and 
as  such  delay  resulted  in  the  raft 
being  overtaken  by  the  storm,  the 
defendants  were  responsible  for  the 
consequences;  that  when  they  took 
the  raft  in  tow  in  the  evening  instead 
of  the  morning,  as  agreed,  they  took 
the  risk  of  any  storm  that  should 
arise  after  a  sufficient  time  had 
elapsed  for  the  towing  the  raft  to 
Black  Rock,  if  they  had  commenced 


the  towing  in  the  morning.  The 
plaintiff  had  a  right  to  fix  the  time 
in  the  contract,  and  to  make  it  an 
essential  part  of  the  contract,  consid- 
ering the  dangers  of  navigation  upon 
the  lake,  and  the  peculiar  nature  and 
condition  of  the  plaintiff's  property; 
he  might  determine  when  the  voy- 
age should  commence,  and  make  a 
special  agreement  to  that  effect. 
And  upon  the  non-performance  of 
the  agi-eement,  at  the  time  specified, 
the'  party  in  default  was  liable  for 
the  damages  resulting  from  causes 
which  would  not  have  arisen  had  the 
agreement  been  performed.  Michael 
V.  N.  Y.  C.  R.  R.  Co.  30  N.  Y.  564; 
Maghee  v.  C.  &  A.  R.  R.  Co.  45  N. 
Y.  514;  Condict  v.  The  G.  T.  R.  R. 
Co.  54  N.  Y.  500;  Rawson  v.  Hol- 
land, 59  N.  Y.  611. 

'  McNabb  v.  Wixon,  7  Nev.  163. 

2  Snelling  v.  McDonald,  14  Allen, 
296 ;  Vandenburgh  v.  Truax,  4  Denio, 
464;  Kellogg  v.  Chicago,  etc.  R.  R. 
Co.  26  Wis.  223. 


62  COMPENSATION. 

The  prima/ry  cause  may  le  the  2^roxiinate  cause  of  a  disaster , 
thoiigh  it  may  operate  through  successive  instruments,  as  an 
article  at  the  end  of  a  chain  may  be  moved  by  a  force  apphed 
at  the  other  end,  that  force  being  the  proximate  cause  of  the 
movement.  The  question  always  is,  "Was  there  an  unbroken 
connection  between  the  wrongful  act  and  the  injury,  a  con- 
tinuous operation  ?  Did  the  facts  constitute  a  continuous  suc- 
cession of  events,  so  linl^ed  together  as  to  make  a  natural  whole ; 
or  was  there  some  new  and  independent  cause,  disconnected 
from  the  primary  fault,  and  self-operating,  which  produced 
the  mjury  ?  The  inquiry  must  be  answered  in  accordance  with 
■  common  understanding.^ 

Any  wrongful  act  Avhich  exposes  one  to  mjury  from  rain, 
heat,  frost,  hre,  water,  disease,  the  instinctive  or  known  vicious 
disposition  or  habits  of  animals,  or  any  other  natural  cause, 
under  circumstances  which  rendered  it  probable  that  such  an 
injury  will  occm',  is  a  primary,  efficient  and  proximate  cause,  if 
the  injury  ensue.  Many  such  cases  have  been  referred  to  in 
the  preceding  pages. 

The  act  of  the  irijtcred  party  may  he  the  more  immediate 
cause  of  his  injury  /  yet,  if  that  be  an  act  which  is,  as  to  him, 
reasonably  induced  by  the  prior  misconduct  of  the  defendant, 
and  without  any  concurring  fault  of  the  sufferer,  that  mis- 
conduct will  be  treated  as  the  responsible  and  efficient  cause 
of  the  injury.  Cases  of  fraud  are  apt  illustrations,  where,  by 
some  artifice  or  false  representation,  the  plaintiff  has  been 
induced  to  incur  obhgations,  to  part  with  his  property,  or  to 
place  himself  in  any  predicament  by  which  he  suffers  loss. 
The  act  by  which  he  binds  himself,  pays  money,  or  alters 
his  situation,  is  his  own  act,  but  superinduced  by  the  superior 
vicious  will  of  the  defrauding  party ;  and  the  latter  is  legally 
responsible  for  all  the  loss  which  ensues.  A  single  instance 
will  suffice.  W  obtained  goods  fi'om  the  plaintiff  on  credit, 
upon  the  representation  of  K  that  W  was  responsible,  and 
worthy  of  credit,  and  owed  very  little,  if  anything.  At  the 
time  of  the  sale  and  dehvery  of  the  goods,  W  was  insolvent 
and  R  knew  it.  R  himself  had  a  judgment  for  a  considerable 
amount  docketed  only  a  month  previous  to  the  sale.     On  this 

1  Milwaukee,  etc.  R.  R.  Co.  v.  KeUogg,  94  U.  S.  469. 


EEMOTE   AND   PKOXIMATE   CAUSE.  63 

judgment,  R  caused  an  execution  to  be  issued  and  levied  upon 
the  goods  so  obtained  from  the  plaintiff,  before  the}^  reached 
the  store  of  "W.  It  was  held,  that  for  these  false  and  fraudulent 
representations,  E  was  hable  to  the  plaintiff  for  the  value  of 
the  goods  sold  to  W} 

If  the  plaintiff  is  placed  in  a  situation  of  danger  to  person 
or  property  by  the  defendant's  misconduct,  and  is  injured  in 
a  reasonable  endeavor  to  extricate  himself,  such  misconduct 
is  the  proximate  cause  of  the  injury,  though  it  proceed  more 
immediately,  and,  it  may  be,  exclusively,  from  the  plaintiff's 
own  act.  Thus,  if  through  the  default  of  a  coach  proprietor 
in  neglecting  to  provide  proper  means  of  conveyance,  a  pas- 
senger be  placed  in  so  perilous  a  situation  as  to  render  it  prudent 
for  Mm  to  leap  from  the  coach,  whereby  his  leg  is  broken,  the 
proprietor  will  be  responsible  in  damages,  although  the  coach 
was  not  actually  overturned.^  IsTor  is  a  person  chargeable  with 
contributory  negligence — that  is,  with  making  his  own  act  in 
part  the  efficient  cause,  for  acting  erroneously  in  a  position  of 
sudden  danger  in  which  he  is  placed  by  the  negligence  or  fault 
of  another.  If,  therefore,  a  stage  coach  is  upset  by  the  negh- 
gence  of  the  driver,  and  a  passenger  therein,  under  tlie  impulse 
of  fear,  acts  in  a  mamier  which  results  in  an  injury  to  himself, 
where,  had  he  remained  calm  and  kept  his  place,  he  would 
have  escaped  injury,  he  wiU  not  thereby  be  precluded  from 
recovering  damages  of  the  carrier.^ 

A  case  arose  in  Massachusetts,  in  which  the  immediate  cause 
of  the  injury  was  the  act  of  the  plaintiff,  and  yet  a  defect  in  a 
highway  was  held  to  be  the  proximate  and  efficient  cause  of  the  in- 
jur}^, though  other  circumstances  contributed.  The  alleged  defect 
consisted  of  a  culvert  running  across  the  highway,  and  a  hole 
at  one  end  of  the  culvert.  As  the  plaintiffs  (husband  and  wife) 
were  driving  together  in  their  wagon  along  the  traveled  part  of 
the  highway,  between  the  hours  of  eight  and  nine  in  the  even- 

'  Bean  v.  WeUs,  28  Barb.  466.  R.  Co.  v.  Paulk,  24  Ga.  356;  Wilson 

« Jones  V.  Boyce,  1  Stark.  493;  In-  v.  N.   P.  R.  R.   Co.    26  Minn.    278, 

galls  V.  Bills,  9  M^-t.  1;  McKinney  v.  Oliver  and  wife  v.  La  Valle,  36  Wis. 

Neil,  1  McLean,  540;  Frinkv.  Potter,  592;  Twomley  v.  C.  P.  N.  etc.  R.  R. 

17  111.  406;  Buel  v.  N.  Y.  etc.  R.  R.  Co.   69  N.  Y.  158;  Filer  v.  N.  Y.  C. 

Co.  31  N.  Y.  314;  Eldridge  v.  L.  L  R.  R.  Co.  49  N.  Y.  47. 

etc.  R.  R.  Co.  1  Sandf.  87;  S.  W.  R.         ^gtokes  v.  Saltenstall,  13  Pet.  181. 


64:  COMPENSATION. 

ing,  a  band  of  music,  a  little  way  in  advance,  commenced  to 
play,  by  wliicli  the  horse  was  alarmed ;  this  hajipened  near  to 
the  alleged  defect  in  the  highway.  In  the  course  of  the  inci- 
dent, the  wife  was  taken  up  from  the  ground  at  or  near  the 
culvert,  seriously  injured ;  but  the  precise  manner  in  which  she 
came  to  the  ground,  whether  by  being  forcibly  thrown  from  the 
wagon,  or  by  leaping  from  it,  or  by  the  two  actions  concurring ; 
and  whether  the  wagon  did  or  did  not  come  in  contact  with  the 
hole,  were  questions  of  fact  in  the  case.  There  was  a  variance 
between  the  proof  and  the  declaration,  for  which  the  judgment 
was  reversed,  but  this  instruction  was  approved:  "When  a 
party  is  traveling  on  a  highway,  and  there  is  a  legal  defect  in 
it,  and  the  party,  under  apprehensions  of  an  imminent  peril,  by 
the  near  approach  of  his  carriage  to  the  defect  in  the  highway, 
but  without  or  previous  to  actual  contact  with  the  defect,  leaps 
from  his  carriage  and  is  injured  thereby,  then  the  rule  of  law  is 
this :  it  is  an  element  of  reasonable  care  on  the  part  of  the 
plaintiff.  If  the  plaintiff  be  placed,  by  reason  of  the  defect  in 
the  highway  and  his  approach  thereto,  in  such  a  situation  as 
obhges  him  to  adopt  the  alternative  of  a  dangerous  leap,  or  to 
remain  at  a  certain  peril,  and  he  leaps  and  is  injured,  then  aU. 
the  conditions  of  liabihty  being  fulfilled,  he  may  recover  dam- 
ages of  the  party  responsible  for  the  repair  of  the  highway."  ^ 

The  concurrence  of  an  infant  plaintiff's  natural  indiscretion, 
with  the  defendant's  neghgence,  will  not  reheve  the  latter  from 
the  responsibility  of  an  act  which  exposes  him  to  injury.^ 

The  innocent  or  culpahle  act  of  a  third  person  tnay  he  the  im- 
mediate cause  of  the  injury ^  and  still  an  earlier  wronqful  act  may 
have  cantrihuted  so  effectually  to  it  as  to  he  regarded  as  the  effi- 
cient or  at  least  concurrent  and  responsible  cause?     The  noted 

1  Lund  V.  Tyngsboro,  11  Cush.  287;  Abbott  v.  McFie,  2  H.  &  C.  744; 
■564-5.  Nangan  v,  Atherton,  L.  R.  1  Exch. 

2  Pittsburgh,  etc.  R.  R.  Co.  v.  Cald-  239;  Lynch  v.  Nurden,  1  Q.  B.  29. 
well,  74  Pa.  St.  421;  East  Saginaw,  ^  ]3,^jj.i.o-^yg  y_  March,  etc.  Gas  Co. 
etc.  Co.  V.  Bohn,  27  Mich.  503;  Holly  39  L.  J.  Exch.  33,  L.  R.  5  Exch.  67; 
V.  Boston  Gas  Co.  8  Gray,  123;  Stitt-  Lannen  v.  Albany  Gas  Co.  44  N.  Y. 
sonv.  Hannibal,  etc.  R.  R.  Co.  67  459;  Guille  v.  Swan,  19  John,  381; 
Mo.  671;  Lane  v.  Atlantic  Works,  Scholes  v.  North  L.  R.  R.  Co.  21  L. 
Ill  Mass.  136;  Sheridan  v,  Brooklyn,  T.  N.  S.  835;  Pastine  v.  Adams,  49 
etc.  R.  R.  Co.  36  N.  Y.  39;  see  Single-  Cal.  87;  Vandenburg  v.  Truax,  4 
ton  V.  Eastern  Co.  R'y  Co.  7  C.  B.  N.  S.  Denio,  464. 


KEMOTE   AJST5   PROXIMATE   CAUSE.  65 

squib  case  is  an  example.^  The  defendant  threw  a  squib  into  a 
market-house ;  where  it  first  fell,  a  person  to  save  himself,  threw 
it  off,  and  where  it  then  fell,  it  was  again  thrown  for  like  reason, 
and  struck  and  injured  the  plaintiff.  It  was  held  that  the  de- 
fendant's act  so  directly  caused  the  injury  to  the  plaintiff  that 
trespass  would  he.  A  defendant  stopped  his  team,  and  negli- 
gently left  it  in  a  business  street  of  a  town,  without  being 
hitched  or  otherwise  secured.  It  started  and  ran  violently 
along  the  street  and  coUided  with  another  team,  which,  though 
properly  hitched  at  the  side  of  the  street,  was  frightened,  and 
broke  from  its  fastenings,  and  ran  across  the  street,  against,  and 
injuring,  a  horse  and  sleigh  belonging  to  the  plaintiff.  It  ap- 
peared that  while  the  defendant's  horses  were  running,  and  be- 
fore they  had  collided  with  the  other  horses,  a  crowd  of  persons 
came  into  the  street,  haUooed,  and  raised  their  hats  for  the  pur- 
pose of  stopping  the  horses,  which  caused  them  to  swerve  from 
the  course  they  were  taking,  and  in  this  manner  they  came  in 
contact  with  the  second  team.  The  court  held  the  rule  of  law 
to  be  well  settled,  that  when  the  plaintiff  has  been  injured  in  his 
person  or  property  by  the  wrongful  act  or  omission  of  the  de- 
fendant, or  through  his  culpable  negligence,  the  fact  that  a 
third  party,  by  his  wrong  or  neghgence,  contributed  to  the  injury, 
does  not  reheve  the  defendant  from  Uabihty.  Keferring  to  the 
facts  the  court  say :  "  The  running  away,  from  the  starting  of 
the  defendant's  team  till  the  colhsion,  was  a  single  transaction ; 
and  whatever  influence  the  interposition  of  the  crowd  had  in 
occasioning  the  collision,  it  was  not  the  sole  cause ;  the  running 
away  which  occmTed  through  the  defendant's  negligence  was, 
in  part,  at  least,  the  occasion  of  it ;  both  causes,  therefore,  in  the 
most  favorable  view  for  the  defendant,  must  have  contributed 
to  it ;  and,  as  the  defendant  is  responsible,  tlu'ough  his  negligence, 
for  one  of  the  agencies  through  which  the  collision  occurred, 
under  the  rule  we  have  stated,  he  is  liable."  Again,  the  com-t 
say :  "  All  the  consequences  which  actually  resulted  in  this 
case  from  the  running  away  of  defendant's  team,  might,  we 
think,  reasonably  have  been  expected  to  occm*  fi'om  the  running 
away  of  any  team,  under  sunilar  circumstances,  in  the  principal 
business  street  of  a  town ;  and  the  running  away  of  the  de- 

» Scott  V.  Shepherd,  2  W.  Bl.  893. 
Vol.  I— 5 


66  COMPENSATION. 

fendant's  team  was  the  efficient  cause  of  the  injury  to  the 
plaintiff's  horse,  because  it  put  in  operation  the  force  which  was 
the  immediate  and  direct  cause  of  the  injury,^ 

An  assessor  of  a  town  altered  an  assessment,  after  it  had  been 
perfected  and  lodged  with  another  officer,  and  after  the  assess- 
or's power  over  it  had  ceased ;  he  altered  it  in  such  a  manner 
that  the  property  of  the  plaintiff  was  rated  at  a  Mgher  sum. 
The  selectmen  made  out  a  rate-biE,  by  which  the  plaintiff  was 
charged  with  an  increased  amount,  and  procured  a  tax  warrant, 
which  they  placed  in  the  hands  of  the  collector.  The  plaintiff 
refusing  to  pay  the  illegal  portion  of  the  tax,  the  selectmen, 
with  a  full  knowledge  of  all  the  facts,  directed  the  collector  to 
levy  and  collect  it.  The  collector  made  a  le^y,  and  the  plaintiff 
then  paid  the  tax,  and  afterwards  brought  an  action  on  the  case 
against  the  assessor  for  the  injury.  The  jury  were  instructed, 
and  the  instruction  sustained,  that  the  action  of  the  selectmen 
in  directing  the  levy,  although  it  might  make  them  liable,  would 
not  affect  the  right  of  the  plaintiffs  to  recover  against  the  de- 
fendant for  the  wrongful  alteration ;  and  the  plaintiffs  were  held 
entitled  to  recover  as  proximate  consequences  the  injury  result- 
ing from  the  levy.'^  The  point  under  consideration  is  well  illus- 
trated by  those  cases  in  which  a  party  has  suffered  a  special 
injury  at  the  hands  of  third  persons  in  consequence  of  the 
spealdng  of  slanderous  Avords.  Where  the  injurious  act  of  the 
third  person  is  shown,  with  the  requisite  certainty,  to  have  been 
the  consequence  of  the  defendant's  spealdng  of  the  slanderous 
words,  the  action  has  been  sustained.^  In  case,  for  slanderous 
words,  by  reason  of  which  the  plaintiff  was  turned  out  of  her 
lodgings  and  employment,  it  appeared  that  the  defendant  com- 
plained to  E,  the  mistress  of  the  house,  who  was  his  tenant, 
that  her  lodgers,  of  whom  the  plaintiff  was  one,  behaved  im- 
properly at  the  windows ;  and  he  added,  that  no  moral  person 
would  like  to  have  such  people  in  his  house.  E  stated,  in  her 
evidence,  that  she  dismissed  the  plaintiff  in  consequence  of  the 

1  Griggs  V.  Fleckenstein,  19  Ga.  81;  ^  Fuller  t.  Turner,  16  Barb.  333; 
SneUing  v.  McDonald,  14  AUen,  292;  Halleck  v.  MiUer,  2  Barb.  630;  Moody 
2  Greenlf.  Ev.  §§  356,  286,  2S8a;  3  v.  Baker,  5  Cow.  351;  Ward  v. 
Par.  on  Cont.  179-80.  Weeks,    7    Bing.  211;    Bateman  v. 

2  Bristol  M.  Co.  v.  Gridley,  28  LyaU,  7  C.  B.  N.  S.  638;  WiUiams 
Conn.  201;  S.  C.  27  Conn.  221.  v.  HiU,  19  Wend.  305. 


REMOTE   AXD   PKOXDIATE    CAL'SE.  67 

words,  not  because  she  believed  them,  but  because  she  was 
afraid  it  would  offend  her  landlord,  if  the  plaintiff  remained. 
The  action  was  held  maintainable,  the  special  damages,  which 
were  the  gist  of  the  action,  being  the  consecjuence  of  the  slan- 
derous words  used  by  the  defendant.  The  witness'  statement, 
that  she  did  not  dismiss  the  plaintiff  because  she  believed  the 
words  spoken,  was  not  allowed  to  defeat  the  action.  Lord 
Denman,  C.  J.,  said :  "  It  would  be  speculating  too  finely  on 
motives ;  and  such  a  disposition  in  the  court  would  too  often 
put  it  in  the  power  of  the  unwilhng  witness  to  detennine  a 
cause  against  the  plaintiff.  The  proper  question  is,  whether  the 
injury  was  sustained  in  consequence  of  the  slanderous  words  hav- 
ing been  used  by  the  defendant.^  But  the  injury  must  be  the 
natural  and  proximate  consequence.  An  injur}'',  caused  by  the 
repetition  of  the  words  by  a  third  person,  who  heard  them 
uttered  by  the  defendant,  is  too  remote,^  unless  the  defendant 
authorized  or  suggested  their  repetition,  or  there  was  some  duty 
of  the  hearer  to  repeat  the  defamatory  words.^  Such  a  spontane- 
ous and  unauthorized  communication,  it  is  said,  cannot  be  con- 
sidered as  the  necessary  consequence  of  the  original  uttering  of 
the  words.^ 

Where  the  injury  suffered  is  not  the  legal  and  natural  conse- 
quence of  the  ^^^:•ongful  act  of  the  party  sought  to  be  made  hable, 
but  results  from  the  wrongful  act  of  a  third  party,  only  remotely 
induced  by  the  defendant's  conduct,  he  is  not  hable.^  Thus,  in  an 
action  by  one  engaged  in  the  business  of  butchering,  for  selhng 
(iiseased  sheep  as  sound  and  healthy,  it  appeared  that  the  plamtiff 
had  engaged  one  G  to  take  some  of  the  mutton  which  might  be 
on  hand  and  sell  it ;  but  in  consequence  of  a  rej)ort  that  the 
plaintiff  had  purchased  the  defendant's  diseased  sheep,  G  re- 
fused to  perform  his  contract.  It  was  held  that  the  defendant 
was  not  liable  for  any  damages  for  G's  refusal  to  perform  his 

1  Knight  V.  Gibbs,  1  Ad.  &  E.  43.  645;  Mon-is  v.  Langdale,  2  B.  &  P. 

« Ward  V.  Weeks,  9  Bing.  211.  284;  Ashley  v.  Harrison,  1  Esp.  48 

'Adams  V.  KeUey,  Ry.  &  Moo.  157;  Pilmore  v.  Hood,  5  Bing.  N.  C.  97 

Parkesv.  Prescott,  L.  R.  4Exch.  169;  Allsop    v.  Allsop.  5    H.  &    N.  534 

Kendillon  v.  Maltby,  1  Cr.  &  M.  403;  Bentley  v.  Reynolds,  1  McMull.  16 

Deny  v.  Handley,  16  L.  T.  N.  S.  263.  Underbill  v.  Wilton,  32  Vt.  40. 

*Id.;  see  Riding  v.  Smith,  1  Ex.  D.  *  Ward  v.  Weeks,  7  Bing.  211. 
91;  KeUy  v.  Partington,  5  B.  &  Ad. 


68  COMPENSATION. 

contract,  nor  for  any  damages  suffered  by  the  plaintiff  in  conse- 
quence of  his  customers  refusing  to  deal  with  him  by  reason  of 
that  report.^ 

"Where  the  immediate  cause  of  the  injury  is  the  wrongful  act 
of  a  third  person,  the  inim-ed  party  has  of  course  an  action 
against  him  ;  and  this,  in  some  early  case,  was  thought  to  bar  an 
action  against  any  antecedent  actor,  more  remotely  the  cause  of 
the  injmy ;  but  it  now  seems  to  be  settled  that  the  hability  of 
a  more  unmediate  party  does  not  reheve  any  other  party,  whose 
act  can  properly  be  treated  as  the  efficient  and  proximate  or 
concmTent  cause  of  the  injury.  A  vendor  of  property,  who 
had  been  paid  for  it,  was  induced,  by  the  defendant's  false  and 
malicious  representation  that  he  had  a  lien  on  the  property  and 
was  entitled  to  control  its  custody,  to  refuse  to  dehver  it, 
whereby  the  pm^chaser  suffered  an  injury ;  and  he  was  held 
entitled  to  his  action,  although  he  had  a  remedy  on  his  contract 
agaii.st  the  vendors.  Knowingly  maldng  a  false  claim  of  hen 
was  the  gravamen  of  the  action ;  and  it  was  held  that  the  special 
damage  alleged,  namely,  the  non-dehvery  of  the  property,  was 
sufficiently  connected  with  the  ^vrongful  act  to  support  the  action.^ 

In  one  case  it  appeared  that  the  defendant,  being  about  to 
sell  a  pubhc  house,  falsely  represented  to  B,  who  had  agreed  to 
purchase  it,  that  the  receipts  were  £180  a  month;  B,  having, 
to  the  knowledge  of  the  defendant,  communicated  this  represen- 
tation to  plaintiff,  who  became  the  purchaser  instead  of  B  ;  it 
was  held  that  an  action  would  He  for  the  circuitous  deceit  prac- 
ticed by  the  defendant.^ 

'Grain  v.  Petrie,  6  Hill,  522;  But-  ering  against  the  defendant.     It  is 

ler  V.  Kent,  19  John.  223.  unnecessary    to    consider    how  far 

^  Green  v.  Button,  2  C.  M.  &  R.  these  cases  would  be  supported,  if 

707.      Parke,  B.,  said:    "  But  it  is  the  same  question  arose  directly;  if 

said  they  (the  vendors)  were  under  it  did,  we  should  desire  time  to  give 

an  absolute  contract  to  deliver  to  them  full  consideration,  som6  doubt 

the  plaintiff,  and  that  he  might  take  having    been    thrown    upon    their 

his    remedy  against    them  for  the  authority." 

breach  of  that  contract;  and  Vicars  ^  Pilmore  v.  Hood,  5  Bing.  N.  C. 
V.  Wilcocks,  8  East,  1,  and  Lord  El-  97.  Bosanquett,  J.,  thus  states  the 
don's  dictum  in  Morris  v,  Lang-  facts  and  the  grounds  of  the  de- 
dale,  2  B.  &  P.  284,  are  cited  to  show  fendant's  Habihty:  "  It  appears  that 
that  the  plaintiff's  right  of  action  the  defendant  entered  into  a  con- 
against  them  bars  them  from  recov-  tract  of  sale  of  a  public  house  with 


KEMOTE    AND    PROXIMATE    CAUSE. 


69 


A  stage-coach,  by  tho  negligence  of  the  driver,  was  precipi- 
tated into  a  dry  canal ;  the  lock-keeper  thereafter  neghgently 
opened  the  gates  of  the  canal  and  drowned  a  passenger.  Under 
Lord  Campbell's  act,^  the  Irish  court  of  queen's  bench  held 
that  the  death  of  a  passenger  under  such  circumstances,  in  the 
language  of  the  act,  was  "  caused  "  by  the  negligence  of  the 
driver.  O'Brien,  J.,  said  :  "  The  precipitation  of  the  omnibus 
into  the  lock  was  certainly  one  cause  of  her  death,  inasmuch  as 
she  would  not  have  drowned  but  for  such  precipitation.  It  is 
true  that  the  subsequent  letting  of  the  water  into  the  lock  was 
the  other  and  more  proximate  cause  of  her  death,  and  that  she 
would  not  have  lost  her  life  but  for  such  subsequent  act,  which 
was  not  the  necessary  consequence  of  the  previous  precipitation 
by  the  neghgence  of  the  defendant's   servant.     But,  in  my 


a  person  of  the  name  of  Bowmer; 
that  wlien  the  agreement  was  en- 
tered into,  he  represented  to  Bow- 
mer  that  the  pubhc  house  was  of  a 
certain  value  in  respect  of  its  trade, 
and  tliat  representation  he  knew  to 
be  false,  at  the  time  he  made  it.  Af- 
ter this  agreement  had  been  entered 
into  with  Bowmer,  Bowmer,  find- 
ing himself  unable  to  complete  the 
contract,  entered  into  a  negotiation 
with  the  plaintiff,  Pilmore,  and  in- 
formed him  what  representation  he 
had  received  of  the  value  of  this 
public  house  from  the  defendant; 
and,  taking  it  according  to  the  plea, 
that  Bowmer  had  not  any  particular 
authority  from  the  defendant  to 
make  such  communication  to  Pil- 
more, the  defendant  had  notice  that 
the  information  had  been  given  to 
PUmore,  and.  it  is  averred,  that  both 
at  the  time  of  the  original  agree- 
ment with  Bowmer,  as  also  at  the 
time  of  the  agreement  which  subse- 
quently took  place  with  Pilmore, 
the  defendant  knew  that  the  infor- 
mation was  false.  Then,  having 
notice  that  that  communication  had 
been  made,  and  knowing  at  the 
time  that  it  was  false,  he  enters  into 


a  new  agreement  with  Pilmore  and 
Bowmer,  that  Pilmore  shall  stand 
in  the  place  of  Bowmer  in  the  pur- 
chase of  this  public  house.  The 
record  further  states  that  Pilmore, 
confiding  in  that  representation, 
paid  money  to  the  defendant.  I 
think  it  is  impossible,  on  the  state- 
ment of  these  facts,  not  to  see  that 
the  defendant,  'o'hen  he  entered  into 
that  contract  witli  Bowmer,  ha-^ing 
thus  himself  made  the  fraudulent 
representation,  and  knoTving  it  to 
have  been  communicated  to  the 
person  with  whom  he  was  about  to 
contract  a  second  time,  then  with- 
holding an  explanation,  or  denial  of 
his  authority  for  communication, 
and  suffering  the  plaintiff  on  the 
faith  of  the  communication  to  enter 
into  that  contract,  was  as  much 
guilty  of  a  deceit  on  the  plaintiff,  as 
if  he  had  in  terms  repeated  the 
statement  himself.  On  these 
grounds,  without  entering  further 
into  the  case,  I  think  this  action 
may  be  maintained."  See  Long- 
ridge  V.  Levy,  2  M.  &  W.  519;  Rich- 
ardson V.  Dunn,  8  C.  B.  N.  S.  655. 
'  9  and  10  Vict.  c.  93. 


YO 


COMPENSATION, 


opinion,  the  defendant  is  not  relieved  from  liability  for  liis  pri- 
mary neglect  by  showing-  that,  but  for  such  subsequent  act,  the 
death  would  not  have  ensued."  ^ 

Cases  may  be  stated  where  the  wrongful  conduct  of  one  per- 
son affords  the  opportunity  or  occasion  for  the  illegal  acts  of 
another,  or  for  an  injury  from  other  causes.  The  injury  in  such 
cases  is  too  remote ;  ^  unless  the  injury  thus  ensuing  was  such  as 
was  likely,  according  to  the  general  experience,  to  happen  from 
such  conduct ;  or  where  the  misconduct  offering  such  opportunity 
consists  in  the  omission  of  some  precaution,  it  was  the  defend- 
ant's duty  to  take  against  such  loss  as  has  occurred.  When  such  a 
duty  has  been  neglected  by  bailees  and  agents,  they  are  hable 
for  losses  by  the  torts  of  third  persons  and  strangers. 

The  learned  reader  is  referred  to  the  following  cases,  which 
bear  on  the  subject  of  consequential  damages,  remote  and 
otherwise.'' 


'  Byrne  v.  Wilson,  15  Irish  C.  L. 
333-343;  Thompson's  Car.  Pass.  390; 
Eaton  V,  Boston,  etc.  R.  R.  Co.  11 
Allen,  500;  Spooner  v.  Brooklyn  City 
R.  Co.  54  N.  Y.  330. 

«Cuff  V.  Newark,  etc.  R.  R.  Co.  35 
N.  J.  L.  30;  Scholes  v.  North  London 
R.  R.  Co.  31  L.  T.  N.  S.  835. 

^Narcrossv.  Narcross,  53  Me.  163; 
Mason  v.  Thompson,  9  Pick.  380; 
Shaw  V.  Berry,  31  Me.  478;  Sibley  v. 
Aldrich,  33  N.  H.  553;  Sassean  v. 
Clark,  37  Ga.  343;  Clute  v.  Wiggins, 
14  John.  175;  McDaniels  v.  Robinson, 
26  Vt.  316. 

*  Adams  v.  Lancashire,  etc.  R'y 
Co.  L.  R.  4  C.  P.  739;  Smith  v.  Dob- 
son,  3  M.  &  Gr.  59;  Rigby  v.  Hewitt, 
5  Exch.  340;  Greenland  v.  Chaplin,  5 
Ex.  343;  Barnes  v.  Ward,  9  C.  B. 
893:  Collins  V.  The  Middle  L.  Comrs. 
L.  R.  4  C.  P.  379;  Harrison  v.  G.  N. 
R'y  Co.  3  H.  &  C.  331;  Butterfield  v. 
Forrester,  11  East,  60;  Martin  v.  G. 
N.  R'y  Co.  16  C.  B.  179;  Gen'l  Steam 
Nav.  Co.  V.  Mann,  14  C.  B.  137; 
Holden  v.  Liverpool  Gas  Co.  3  C.  B.  1; 
Cotton  V.  Wood,  8  C.   B.  N.  S.  568; 


Flower  v.  Adam,  3  Taunt.  314;  Ellis 
V.  London,  etc.  R'y  Co.  2  H.  &  N. 
434;  Singleton  v.  Williamson,  7  H.  & 
N.  410;  Skelton  v.  London,  etc.  R'y 
Co.  L.  R.  3  C.  P.  631;  Thompson  v. 
N.  E.  R'y  Co.  3  B.  &  S.  106;  Bridges 
V.  Grand  J.  R'y  Co.  3  M.  &  W.  344; 
Glover  v.  London,  etc.  R'y  Co.  L.  R. 
8  Q.  B.  35;  The  Flying  Fish,  34  L.  J. 
Adm.  113;  Everard  v.  Hopkins,  3 
Bulst.  333;  Hughes  v.  Quentin,  8  C. 
&  P.  703;  Peacock  V.  Young,  31  L.  T. 
N.  S.  527 ;  Moody  V.  Baker,  Cowp.  351; 
Priestly  v.  Maclean,  3  F.  &  F.  388; 
Sneesby  v.  Lancashire  R'y  Co.  L.  R.  9 
Q.  B.  363:  Smith  v.  Cowdrey,  1  How. 
U.  S.  35;  Loker  v.  Damen,  17  Pick. 
384;  McDaniel  v.  Crabtree;  State  v. 
Thomas,  19  Mo.  613;  Oil  Creek,  etc. 
R.  R.  Co.  V.  Keighson,  74  Pa.  St.  316; 
Tarleton  v.  McGowley,  Peake's  N.  P. 
Cas.  270;  Carrington  v.  Taylor,  11 
East,  571;  Keeble  v.  HeckeringiU,  11 
East,  574;  Herring  v.  Skaggs,  62  Ala. 
180;  Hanover  R.  R.  Co.  v.  Coyle,  55 
Pa.  St.  396;  Baldwin  v.  U.  S.  T.  Co. 
45  N.  Y.  744;  Bartlett  v.  Hooksett, 
48  N.    H.  18;   Ayer  v.  Norwich,  39 


REMOTE   AKD   PKOXIMATE   CAUSE.  71 

In  cases  of  wilful  or  malicious  injury,  and  injury  from  reck- 
less or  illegal  acts,  or  from  positive  fraud,  the  damages  are  not 
so  strictly"  confined  to  proximate  consequences  as  when  these 
elements  do  not  exist.  They  are  aggravations  which  increase 
the  injury  and  entitle  the  injured  party  to  increased  compensa- 
tion.^ A  severer  measiu-e  of  damages  is  somethnes  adopted, 
and  items  included  which  in  other  cases  are  not  permitted  to  be 
taken  into  account. 

It  was  said  by  Baldwin,  J.:  '^  "  When  a  trespass  is  committed 
in  a  wanton,  rude  and  aggravated  manner,  indicating  malice,  or 
a  desire  to  injure,  the  jury  ought  to  be  liberal  in  compensating 
the  party  injm'ed  in  all  he  has  lost  in  property,  in  expenses 
for  the  assertion  of  his  rights,  in  feehng  or  reputation,"  and  to 
superadd  to  such  compensation  a  sum  for  punishment.  In  a 
case  of  wilful  negligence  in  England,  the  trial  court  instructed 
the  jury  that  they  might  take  into  consideration  all  the  circum- 
stances, and  see  whether  there  was  anything  to  satisfy  them  that 
the  defendant  had  behaved  in  an  improper  and  unjustifiable 
manner ;  and  if  so,  they  need  not  give  damages  strictly,  but 
mio'ht  o^ive  them  with  a  liberal  hand.  This  instruction  was  held 
correct.  PoUock,  C.  B.,  in  giving  judgment,  said :  "  It  is  univer- 
sally felt  by  all  persons  who  have  had  occasion  to  consider  the 
question  of  compensation,  that  there  is  a  difference  between  an 
injury  which  is  the  mere  result  of  such  negligence  as  amounts 
to  httle  more  than  an  accident,  and  an  injury,  wilful  or  negh- 
gent,  which  is  accompanied  with  expressions  of  insolence.  I  do 
not  say  that  in  actions  of  negligence  there  should  be  vindictive 
damages,  such  as  are  sometimes  given  in  actions  of  trespass ;  but 

Conn.  376;    Dimock  v.    Saffield,  30  53  Me.  538;  Cook  v.  Charlestown,  98 

Conn.  129;  Fosliay  v.  Glen  Haven,  Mass.  80;  Card  v.  Ellsworth,  65  Me. 

^5  Wis.  288;  Morse  v.  Richmond,  41  547;  Krach  v.  Hielraan,  53  Ind.  517; 

Vt.  435;  Howard  v.  N.  Bridgewater,  Chicago  v.  Hoy,  75  111.  530. 

16  Pick.  189;  Kingsbury  v.  Dedham,  'Merst  v.  Harvey,  5  Taunt.  442; 

13  Allen,  186;   Tisdale  v.  Norton,  8  Wright  v.  Gray,  3  Bay.  464;  McDan- 

Met.  388;  Page  v.  Bucksj)ort,  64  Me.  iel  v.  Emanuel,  3  Rich.  455;  Detroit 

51;   Bigelow  v.   Reed.    51   Me.    325;  Daily  Post  v.  Mc Arthur,    16  Mich. 

Lake  v.  Milliken.  63  Me.  340;  Cobb  447;    West  v.  Forest,    22  Mo.    344; 

v.  Standish,  14  Me.  198;    Merrill  v.  Huckle  v.  Money,  3  Wils.  206;  Mc- 

Hampden,  36  Me.  234;  Lawrence  v.  Afee  v.  Crawford,  13  How.  U.  S.  447. 

Mt.  Vernon,  35   Me.    100;  Davis  v.  ^  Pacific  Ins.  Co.  v.  Conrad,  Bald. 

Bangor,  43  Me.  533;  Jewett  v.  Gage,  143. 


Y2  COMPENSATION. 

the  measure  of  damage  should  be  different,  according  to  the 
nature  of  the  injury,  and  the  circumstances  with  which  it  is  ac- 
companied. .  .  The  courts  have  always  recognized  the  dis- 
tinction between  damages  given  with  a  hberal  and  a  sparing 
hand."  ^  For  this  reason,  all  the  circumstances  of  the  injurious 
act  are  provable,  and  to  be  considered  by  the  jury.'^  The  court 
say,  in  a  late  case  in  Massachusetts,  that  in  an  action  of  tort  for 
a  wilful  injury  to  the  person,  the  manner  and  manifest  motive 
of  the  wrongful  act  may  be  given  in  evidence  as  affecting  the 
question  of  damages ;  for  when  the  mere  physical  injury  is  the 
same,  it  may  be  more  aggravated  in  its  effects  upon  the  mind,  if 
it  is  done  in  the  wanton  disregard  of  the  rights  and  feelings  of 
the  plaintiff,  than  if  it  is  the  result  of  mere  carelessness.^  The 
same  view  is  expressed,  and  more  comprehensively,  by  Camp- 
bell, J.,  speaking  for  the  supreme  court  of  Michigan :  "  The 
common  sense  of  mankind  has  never  failed  to  see  that  the  dam- 
age done  by  a  wilful  wrong  to  person  or  reputation,  and,  in 
some  cases,  to  property,  is  not  measured  by  the  consequent  loss 
of  money.  A  person  assaulted  may  not  be  disabled,  or  even 
disturbed  in  his  business,  and  may  not  be  put  to  any  outlay  in 
repairs  or  medical  services.  He  may  not  be  made  poorer  in 
money,  directly  or  consequentially.  He  may  incur  no  pecuniary 
damage  whatever.  .  .  .  When  the  law  gives  an  action  for 
a  wilful  wrong,  it  does  it  on  the  ground  that  the  injured  person 
ought  to  receive  pecuniary  amends  from  the  wrongdoer.  It 
assumes  that  every  such  wrong  brings  damage  upon  the  sufferer, 
and  that  the  principal  damage  is  mental  and  not  physical.  And 
it  assumes,  further,  that  this  is  actual,  and  not  metaphysical 
damage,  and  deserves  compensation.  When  this  is  once  recog- 
nized, it  is  just  as  clear  that  the  wiifulness  and  wickedness  of 
the  act  must  constitute  an  important  element  in  the  computa- 
tion, for  the  plain  reason  that  we  all  feel  our  indignation  excited 
in  direct  proportion  with  the  mahce  of  the  offender,  and  that 
the  wrong  is  aggravated  by  it."  * 

'  Emblen  v.  Myers,  6  H.  &  N,  54;  wards  v.  Beach,  3  Day,  447;  Church- 

Bexby  v.  Dunlap,  56  N.  H.  462.  ill  v.  Watson,  5  Day,  140;   Post  v. 

"Bracegirdle  v.  Or  ford,  2  M.  &  S.  Mann,  4  N.  J.  L.  61. 

79;  Snively  v.  Fahnstock,18  Md.  39;  ^jjawes  v.  Knowles,  114  Mass.  518. 

Treat  v.   Barber,   7  Conn.  279;  Ed-  *  "Welch  v.  Ware,  32  Mich.  77. 


REMOTE    A2s'D    TEOXIMATE   CAUSE.  Y3 

The  effect  of  fraud,  in  causing  a  loss,  on  the  amount  recover- 
able beyond  the  measure  of  damages  in  analogous  cases  of  breach 
of  contract  and  tort,  is  manifest  in  many  particulars.  A  differ- 
ence is  made  on  this  ground  when  there  is  a  breach  of  the  con- 
tract to  sell  and  convey  lands ;  and  where  there  is  a  confusion 
of  goods.  Where  one  sells  a  chattel  and  dehvers  possession,  so 
that  he  is  taken  to  have  waiTanted  the  title,  his  vendee  cannot 
recover  damages  until  he  is  dispossessed  by  the  true  owner ;  but 
if  he  sells  property  with  a  false  and  fraudulent  representation 
of  ownership,  his  vendee  may  recover  damages  for  the  deceit  be- 
fore he  is  disturbed  in  his  possession,  and  according  to  the 
measure  of  damages  appUcable  to  a  breach  of  warranty.^ 

It  was  held  by  Lord  Kenyon  that  an  action  lay  for  firing  on 
negroes  on  the  coast  of  Africa,  and  thereby  deterring  them  from 
trading  with  the  plaintiff,  and  that  damages  might  be  recovered 
for  loss  of  theu"  trade.^ 

"WTiere  a  dealer  in  drugs  and  medicines  carelessly  labels  a 
deadly  poison  and  sends  it  so  labeled  into  market,  he  will  be 
held  hable  to  all  persons  who,  without  fault  on  their  part,  are  in- 
jured by  using  it  as  such  medicine  as  it  purports  to  be.^  So,  a 
party  who  fraudulently  sold  a  gun  falsely  representing  it  to 
have  been  made  by  a  particular  maker,  and  to  be  well  made, 
was  held  hable  to  the  purchaser  whose  son  was  injured  by  its 
explosion.*  In  several  of  the  states,  the  expenses  of  the  suit  to 
obtain  redress  for  such  wrongs,  above  taxable  costs,  are  allowed 
to  be  considered  by  the  jury.^  But  in  other  states  it  is  other- 
wise. 

'  Case  T.  Hall,  24  Wend.  103.  Roberts  v.  Mason,  10  Oliio  St.  278; 

''Tarleton  v, .  McGrawley ,  Peake's  Seaman  v.  Feeney,  19  Minn.  79;  Titus 

N.  P.  Cas.  209.  v.  Corkins,  21  Kans.  722;  MarshaU  v. 

'Thomas  v.  Winchester,  2   Seld.  Betner,   17    Ala.   33;    Thompson   v. 

397.  Powning,  15  Nev.  210;  New  Orleans, 

*  Langridge  v.  Levy,  2  M.  &  W.  etc.  R.  R.  Co.  v.  Allbritton,  38  Miss. 

519;  see  Rose  v.  Beatty,  2  N.  &  McC.  243. 
538;  Fultz  v.  Wycoff,  25  Ind.  331.  «  Earle    v.   Tappen,    45    Vt.    374; 

^Dibble  v.  Morris,  26  Conn.  416;  HoweU  v.  Scroggins,  48  Cal.  355. 


74  compensation. 

Section  4. 

consequential  damages. 

For  breach  of  contract,  only  the  damages  contemplated  by  the  parties. 

In  actions  upon  contract,  it  is  also  a  rule  that  only  such 
damages  are  recoverable  as  are  the  natural  and  proximate  con- 
sequence of  the  breach.  They  include  direct  damages,  and  such 
as  the  parties  contemplated  would  be  likely  to  result  from  a 
breach  when  the  contract  was  made.^  Here  an  important  dis- 
tinction is  to  be  noticed  between  the  extent  of  responsibility  for 
a  tort,  and  that  for  breach  of  a  contract.  The  wrongdoer  is 
answerable  for  all  the  injurious  consequences  of  his  tortious 
act  which,  according  to  the  usual  course  of  events  and  the 
general  experience,  were  likely  to  ensue,  and  which,  therefore, 
when  the  act  was  committed,  he  may  reasonably  be  supposed  to 
have  foreseen  and  anticipated.  But  for  breaches  of  contract 
the  parties  are  not  chargeable  with  damages  on  this  principle. 
Whatever  foresight,  at  the  time  of  a  breach,  the  defaulting 
party  may  have,  of  the  probable  consequences,  he  is  not  gen- 
erally held,  for  that  reason,  to  any  greater  responsibility ;  he 
is  hable  only  for  the  direct  consequences  of  the  breach ;  such 
as  usually  occur  from  the  breach  of  such  a  contract,  and  such  as 
were  Avithin  the  contemplation  of  the  parties  when  the  contract 
was  entered  into,  as  likely  to  result  from  a  breach.^ 

Those  which  arise  upon  tlie  direct,  necessary  and  immediate 
effects,  are  always  recoverable ;  because  every  person  is  supposed 
to  foresee  and  intend  the  direct  and  natural  results  of  his  acts ; 
those  which  ensue  in  the  ordinary  course  of  things,  considering 
the  particular  nature  and  subject  matter  of  the  contract.^  It 
is  conclusively  presumed  that  a  party  violating  his  contract  con- 
templates the  damages  which  directly  ensue  from  the  breach. 
There  are  fixed  rules  for  measuring  damages  of  a  pecuniary 
nature,  and  they  apply  to  all  persons  without  regard  to  their 

1  Rhodes  v.  Beard,  16  Ohio  St.  581;  ^  Booth  v.  Spuyten  Duyvil  R.  M. 
Bray  ton  v.  Chase,  3  Wis.  456;  Co.  60  N.  Y.  487;  Hunter  v.  Scott, 
Bridges  v.  Stickney,  38  Me.  361.  64  Pa.  St.  193;  Hadley  v.  Baxendale, 

2  Hadley   v.    Baxendale,    9   Exch.  9  Exch.  341. 
341 ;  Candee  v.  Western  Union  Tel. 

Co.  34  Wis.  479. 


DAMAGES    CONTEMPLATED    BY    PARTIES.  75 

actual  foresight  of  the  particular  elements.  And  this  is  also 
true  of  the  chrect  damages  from  torts.^ 

In  an  action  to  recover  damages  for  the  breach  of  a  contract 
to  harvest  oats,  where  the  petition  stated  that  by  reason  of  such 
breach  these  oats  were  enth'ely  lost,  the  verdict  given  for  thek" 
value  was  retained,  the  trial  cornet  having  refused  to  instruct  the 
jury  that  they  were  to  be  guided  by  the  general  rule  of  dam- 
ages, namely,  the  difference  between  the  contract  price  and 
what  it  would  have  cost,  and  having  instructed  them  that  the 
plaintiff  was  entitled,  upon  proof  of  the  case  stated,  to  recover 
the  value,  if  he  took  aU  reasonable  precaution  to  prevent  such 
loss.^ 

In  a  recent  case  in  Pennsylvania,^  a  party  contracted  with  a 
manufacturer  of  bar  iron  to  furnish  pig  iron  in  certain  quantities 
at  certain  specified  times,  and  made  default,  in  consequence  of 
which  the  manufactm^er  was  obliged  to  get  and  use  an  inferior 
quality  of  iron,  in  order  to  carry  on  his  business,  and  suffered 
loss  with  his  customers.  Sharswood,  J.,  said :  "  When  the  vendor 
fails  to  comply  with  his  contract,  the  general  rule  for  the  meas- 
ure of  damages  undoubtedly  is  the  difference  between  the  con- 
tract and  the  market  price  of  the  article  at  the  time  of  the 
breach.  This  is  for  the  evident  reason  that  the  vendee  can  go 
inta  the  market  and  obtain  the  article  contracted  for  at  that 
price.  But  when  the  circumstances  of  the  case  are  such  that 
the  vendee  cannot  thus  supply  himself,  the  rule  does  not  apply, 
for  the  reason  of  it  ceases.*  ...  If  an  article  of  the  same 
quaUty  can  not  be  procured  in  the  market,  its  market  price  can 
not  be  ascertained,  and  we  are  without  the  necessar}"  data  for 
the  application  of  the  general  rule.  This  is  a  contingency  wliich 
must  be  considered  to  have  been  within  the  contemplation  of 
the  parties,  for  they  must  be  presumed  to  know  whether  such 
articles  are  of  limited  production  or  not.  In  such  a  case,  the 
true  measm-e  is  the  actual  loss  which  the  vendee  sustains  in  his 
own  manufactm^e,  by  having  to  use  an  inferior  article,  or  not 

»Eten  V.  Luyster,  60  N.  Y.  252;         ^  Ha^^gej.  ^    Pearse,  13  Kans.  104; 
Lowensteiu   v.    Cliappell,    30   Barb.      see  Prosser  v.  Jones,  41  Iowa,  674. 
241;  Horner  v.  "Wood,  16  Barb.  389;         ^jIcHose  v.  Fulmer,  73  Pa.  St.  365. 
Ante,  p.  19.  *Bank  of  Montgomery  v.  Reese,  2 

Casey,  143. 


76  COMPENSATION. 

receiving  the  advance  on  his  contract  price  upon  any  contracts 
which  he  himself  had  made  in  rehance  upon  the  fuLfihnent  of 
the  contract  by  the  vendor.  "We  do  not  mean  to  say  that  if  he 
undertakes  to  fill  his  own  contracts  with  an  inferior  article,  and, 
in  consequence,  such  article  is  returned  on  his  hands,  he  can  re- 
cover of  his  vendor,  besides  the  loss  sustained  on  his  contracts, 
all  the  extraordinary  loss  incurred  by  his  attempting  what  was 
clearly  an  unwarrantable  experiment.  His  legitimate  loss  is  the 
difference  between  the  contract  price  he  was  to  pay  to  his 
vendor  and  the  price  he  was  to  receive.  This  is  a  loss  which 
springs  directly  from  the  non-fulfilment  of  the  contract." 

The  rule  under  consideration  was  comprehensively  stated  in 
an  early  case  in  Maine.^  In  general,  the  delinquent  party  is 
holden  to  make  good  the  loss  occasioned  by  his  dehnquency. 
His  hability  is  hmited  to  du-ect  damages,  which,  according 
to  the  nature  of  the  subject,  may  be  contemplated  or  presumed 
to  result  from  his  failure.  Eemote  or  speculative  damages, 
although  susceptible  of  proof  and  deducible  from  the  non- 
performance, are  not  allowed. 

It  was  agreed  between  the  owner  of  a  rice-mill  and  a  planter, 
that,  if  the  latter  would  bring  his  rice  to  the  foraier's  mill,  it 
should  have  priority  in  being  beaten.  Rice  brought  to  the  mill 
was  not  beaten  according  to  this  agreement,  but  was  kept  at  the 
mill  to  await  another  turn,  and,  before  it  was  beaten  at  all,  the 
mill  and  the  rice  in  question  were  consumed  by  an  accidental 
fire.  It  was  held,  that  damages  for  the  loss  could  not  be  as- 
sessed as  the  consequence  of  the  breach  of  the  contract.^  The 
damages  for  a  breach  of  contract  must  be  such  as  the  party  suf- 
fers in  respect  to  the  particular  thing  which  is  the  subject  of  the 
contract,  and  not  such  as  have  been  accidentally  occasioned,  or 
supposed  to  be  occasioned,  in  his  business  or  affairs.^  A  defend- 
ant agreed  to  rent  to  the  plaintiff  a  store  for  a  year,  to  com- 
mence some  weeks  in  the  future.  Relying  upon  this  agreement, 
the  plaintiff  sold  his  lease  to  M  of  a  store  he  then  occupied,  agree- 
ing to  give  possession  about  the  time  he  would  be  entitled  to  go 

1  Miller    v.    Mariner's    Church,    7  201 ;  Hayden  v.  Cabot,  17  Mass.  169: 

Greenlf.  55.  State  v.  Thomas,  19  Mo.  613;  Clark 

''Ashe  V.  Bassett,  5  Jones,  L.  299.  v.    Moore,  3  Mich.    55;  Johnson  v, 

3  Batchelder  v.   Sturges,  3   Cush.  Mathews,  5  Kans.  118. 


DAMAGES    CONTEMPLATED    BY   PAETIES.  Y7 

into  possession  of  tlie  store  rented  of  the  defendant,  M  allowing 
the  plaintiff  to  occupy  a  part  of  the  store  in  the  meantime. 
The  defendant  refused  to  give  the  lease  in  accordance  with  his 
agreement.  The  plaintiff's  goods  were  packed  by  him  to  put 
them  in  the  space  they  were  permitted  to  occupy  in  M's  store, 
and  suffered  some  damage  therefrom.  It  was  held,  that  this 
damage  was  not  the  result  of  the  defendant's  breach  of  contract. 
!N'or  was  he  entitled  to  interest  on  Ms  stock  of  goods  which,  by 
the  defendant's  refusal  to  fulfil  his  contract,  the  plaintiff  had 
been  obhged  to  keep  elsewhere,  and  was  prevented  from  expos- 
ing for  sale,  for  the  period  of  fifteen  days,  as  the  defendant's  act 
did  not  necessarily  prevent  a  sale  of  the  stock  for  that  length  of 
tune.^ 

Parties  when  they  enter  into  contracts  may  well  be  presumed 
to  contemplate  the  ordinary  and  natural  incidents  and  conse- 
quences of  performance  or  non-performance ;  but  they  are  not 
supposed  to  know  the  condition  of  each  other's  affairs,  nor  to 
take  into  consideration  any  existing  or  contemplated  transac- 
tions, not  communicated  nor  known,  with  other  persons.  Few 
persons  would  enter  into  contracts  of  any  considerable  extent 
as  to  subject-matter  or  tiine,  if  they  should  thereby  incidentally 
assume  the  responsibility  of  carrying  them  out,  or  be  held 
legally  affected  by,  other  arrangements,  over  which  they  have 
no  control,  and  the  existence  of  which  are  unknown  to  them. 
In  awarding  damages  for  the  non-performance  of  an  existing 
contract,  the  gains  or  profits  of  collateral  enterprises  in  which 
the  party  claiming  them  has  been  induced  to  engage,  by  relying 
upon  the  performance  of  such  a  contract,  cannot  be  included. 
In  an  action  for  breach  of  a  warranty  of  a  horse,  the  plaintiff 
cannot  recover  as  special  damage  the  loss  of  a  bargain  for  resale 
of  the  horse  at  a  profit,  though  the  contract  for  such  resale  had 
actually  been  completed  before  the  unsoundness  was  discovered.^ 

1  Lowenstien  v.  Chappell,  30  Barb.  Poor,  21  Pick,  378;  Fox  v.  Harding, 
241.  7  Cush.  516. 

2  Horner  v.  AVood,  30  Barb.  389;  ■'  Clare  v.  Maynard,  6  Ad.  &  EI. 
Cuddy  V.  Major,  12  Mich,  368;  Mas-  519;  Walker  v.  Moore,  10  B.  &  C, 
terton  v.  The  Mayor,  etc,  of  Brook-  416;  Lawrence  v.  Ward  well,  6  Barb, 
lyn,  7Hill,  61;Storyv.  TheN.  Y.  etc.  423;  Williams  v,  Reynolds,  6  Best 
C.  R,  R.  Co,  6  N,  Y,  85;  Bridges  v.  &  S,  493;  Harper  v.  Miller,  27  Ind. 
Stickney,  38  Me.   361;    Barnard  v,  277, 


78 


COMPENSATION. 


The  distinction  between  the  habihty  for  consequential  dam- 
ages resulting  from  a  tort,  and  the  damages  recoverable  for 
breach  of  contract,  was  pointed  out,  and  perhaps  too  strictly 
drawn,  in  Ilohls  v.  L.  &  S.  W.  It.  Co.,^  and  in  two  Wisconsin 
cases.^  In  the  English  case  mentioned,  where  a  railroad  carrier 
set  do^vn  the  plaintiff  and  his  wife  and  child  at  a  wrong  station, 
in  the  night,  and  they  were  obhged  to  take  a  long  walk  in  a 
rain  to  reach  their  destination,  it  was  held  there  could  be  no  re- 
covery on  the  contract  for  damages  arising  from  the  wife  taldng 
a  cold  in  consequence  of  the  walk  and  exposure.  In  one  of  the 
other  cases,  the  action  was  upon  a  contract  of  a  railway  com- 
pany, to  convey  the  plaintiff  and  about  eighty  others,  from  one 
station  to  a  given  place  and  back  on  a  named  day  by  a  special 
train,  which  should  leave  for  return  at  a  stated  hour.  It  was 
alleged  that  they  were  conveyed  to  the  place  designated,  but  no 
cars  furnished  to  convey  them  back,  and  the  breach  was  charged 
to  be  wilful  and  fi^audulent ;  that  by  reason  thereof,  the  plaint- 
iff was  greatly  injured  in  bodily  health,  suffered  great  pain  and 
anxiety  of  mind,  lost  much  time  from  business,  and  was  sub- 
jected to  indignities  and  insults  from  emplo3"ees  of  the  com- 
pany. It  was  held,  that  the  action  being  upon  contract,  the 
trial  court  erred  in  refusing  to  charge  that  the  plaintiff  could  not 
recover  for  disappointment  of  mind,  sense  of  wrong  or  injury 
to  liis  feelings  ;  and  in  charging  that,  if  the  defendant's  conduct 
was  wilful  and  malicious,  the  jury  might  award  full  compensa- 
tory damages,  though  not  punitive  damages,  "  embracing  such 
loss  of  tune,  such  injiu'y  to  health,  such  annoyance  and  vexa- 
tion of  mind,  and  such  mental  distress  and  sense  of  wrong,  as 
the  jury  might  find  was  the  immediate  result  of  the  defendant's 
misconduct,  and  must  necessarily  and  reasonably  have  been  ex- 
pected to  arise  therefrom  to  the  plaintiff."  Such  damages  were 
held  too  remote,  and  that  they  could  not  have  been  in  contem- 
plation of  the  parties  when  the  contract  was  made.  The  court 
quoted  and  adopted  the  reasoning  of  the  several  judges  in  the 
English  case.  The  other  Wisconsin  case  was  an  action  for  neg- 
ligence, and  the  facts  were  nearly  hke  those  in  the  Ilobbs  case. 

>  L.  R.  10  Q.  B.  111.  42  Wis.  23:  Brown  v.  C.  M.  &  St.  P. 

s  Walsh  V.  Chicago  &  C.  R.  R.  Co.     R'y  Co.  Wis.  L.  News,  Feb.  2,  1882. 


DAMAGES    COXTEilPLATED   BY   PARTIES.  79 

Eecoveiy  was  allowed  for  the  sickness  caused  by  tlie  necessary- 
walk  of  the  female  plaintiff  to  her  destination. 

In  an  English  case,  much  quoted/  the  scope  of  recovery,  for 
breach  of  contract,  was  thus  stated  by  Alderson,  B.:  "  Where 
two  parties  have  made  a  contract  which  one  of  them  has  broken, 
the  damages  which  the  other  ought  to  receive  in  respect  to  such 
breach  of  contract,  should  be  such  as  may  fairly  and  reasonably 
be  considered  either  as  arising  naturally  —  that  is,  according  to 
the  usual  course  of  things  —  from  such  breach  of  contract  itself, 
or  such  as  may  reasonably  be  supposed  to  have  been  in  the  con- 
templation of  both  parties,  at  the  time  they  made  the  contract, 
as  the  prol)able  result  of  a  breach  of  it.     'Now,  if  the  special 
circumstances,  under  which  the  contract  was  actually  made,  were 
communicated  by  the  plaintiffs  to  the  defendant,  and  thus 
known  to  both  parties,  the  damages  resulting  from  the  breach 
of  such  contract,  which  they  would  reasonably  contemplate, 
would  be  the  amount  of  injury  which  would  ordinarily  foUow 
from  a  breach  of  contract  under  the  special  circumstances  so 
known  and  communicated.     But,  on  the  other  hand,  if  these 
special  circumstances  were  whoUy  unknown  to  the  party  break- 
ing the  contract,  he,  at  the  most,  could  only  be  supposed  to  have 
had  in  contemplation  the  amount  of  injury  which  would  arise 
generally,  and  in  the  great  multitude  of  cases,  not  affected  by 
any  special  cu'cmnstances  from  such  a  breach  of  contract."  ^ 

There  is  no  relaxation  of  the  rule  confining  the  recovery  to 
the  damages  naturally  and  proximately  resulting  from  the 
breach  in  cases  where  there  are  such  known  special  circum- 
stances. Indeed,  the  same  strictness  exists  to  confine  the  recov- 
ery to  the  immediate  consequences.  The  general  principle  of 
compensation  is  that  it  should  be  equal  to  the  injury.  It  is  a 
rule  based  on  that  principle  that  the  amount  of  the  benefit 
which  a  party  to  a  contract  would  derive  from  its  perfonnance 
is  the  measure  of  his  damages  if  it  be  broken.^  It  is  a  rule  of 
interpretation,  too,  that  the  intention  of  the  parties  is  to  be  as- 
certained from  the  whole  contract,  considered  in  connection  with 
the  surrounthng  circmnstances,  known  to  both  parties.     If  it 

'  Hadley  t.   Baxendale,    9  Exch.         '  Alder  v.  Keighley,  15  M.  &  W. 
353.  117. 

« Griflan  v.  Colver,  IG  N.  Y.  4S9. 


80  COMPENSATION. 

appear  by  these  surrounding  circumstances  that  the  contract 
was  entered  into,  and  known  by  both  j^arties  to  be  entered  into, 
to  enable  one  of  them  to  serve  or  accomphsh  a  particular  pur- 
pose, whether  to  secure  a  special  gain,  or  to  avoid  an  anticipated 
loss,  the  liability  of  the  other  for  a  violation  of  the  contract 
will  be  determined,  and  the  amount  of   damages  fixed,  with 
reference  to  the  effect  of  the  breach  in  hindering  or  defeating 
that  object.     The  proof  of  such  circumstances  makes  it  mani- 
fest that  such  damages  were  within  the  contemplation  of  the 
parties.     Looking  alone  at  a  contract  of  this  character,  silent  as 
to  such  circumstances,  which  were  in  view,  such  damages  are 
consequential,  and  sometimes  appear  to  arise  very  remotely  and 
collaterally  to  the  undertaking  violated.     But  when  the  con- 
tract is  considered  in  connection  with  the  extrinsic  facts,  there 
is  established  a  natural  and  proximate  relation  of   cause  and 
effect  between  the  breach  of  the  contract  and  the  injury  to  be 
compensated.     If  all  such  facts  as  are  admissible  to  justify  the 
proof  of  consequential  damages  were  recited  in  the  contract  as 
the  law  connects  them  with  it,  when  known ;  or  if  the  legal 
obligation  which  the  law  imposes  by  reason  of  them  had  been 
expressed   in  words,  by  the   parties,  such  damages  would  be 
direct  and  not  consequential.     In  a  late  case  in  "Wisconsin  the 
plaintiff  was  a  butcher,  and  the  defendant  agreed  to  furnish  him 
with  what  ice  he  might  require  for  his  ice-box  for  a  season; 
knowing  that  the  plaintiff   needed  that  ice  to  preserve  fresh 
meat.     About  the  last  of  July,  the  defendant  stopped  supplying 
ice,  and  refused  to  furnish  any  more,  in  consequence  of  which 
the  plaintiff  lost  considerable  meat,  which  spoiled  for  want  of 
ice.     This  loss  the  plaintiff  was  held  entitled  to  recover.     The 
court  say :     "  As  the  defendant  was  acquainted  with  all  the 
special   circumstances  in  respect  to  this  contract  —  laiew  for 
what  purpose  the  ice  agreed  to  be  furnished  by  him  was  to  be 
used,  he  should  fully  indemnify  the  plaintiff  for  the  loss  he  sus- 
tained by  the  non-delivery  of  the  ice ;  and  he  was,  therefore, 
justly  chargeable  in  damages  for  the  meat  spoiled  in  conse- 
quence of  the  inability  of  the  plaintiff  to  procure  ice  elsewhere.^ 
This  case  was  not  one  of  simple  contract  of  sale.     The  special 
circumstances,  which  were  known  to  both  pai'ties,  made  it  more 

» Haromar  v.  Schoenfeider,  47  Wis.  455. 


DAMAGES   CONTEMPLATED   BY    PAKTIES.  81 

than  that  in  its  aims  and  consequences,  although  the  terms  in 
■u'hich  it  was  made,  considered  alone,  imjDorted  only  a  contract 
of  sale.  The  vendor  knowing  the  pm^pose  for  which  the  ice 
was  wanted,  he  was  held  by  hnphcation.to  undertake  to  deliver 
the  ice  as  agreed,  in  order  that  the  vendee  should  not  suffer  loss 
on  his  fresh  meat  from  his  mabihty  to  preserve  it  for  want  of 
ice.  Such  being  the  contract,  the  loss  which  occurred  from  the 
want  of  ice,  so  agreed  to  be  dehvered,  was  the  direct  -consequence 
of  the  breach.  It  is  to  be  observed  that  the  miphcation,  from 
the  vendor's  knowledge  of  the  special  circmnstances,  required 
performance  of  no  additional  act  to  fulfil  the  contract.  It 
merely  enjoined  on  him  the  duty  to  fulfil  it,  in  view  of  more 
serious  consequences  than  those  which  usually  follow  a  vendor's 
default.  The  principle  that  the  injured  party  is  entitled  to  com- 
pensation proportioned  to  the  actual  injury  is  paramount,  and 
overrides  any  rule  not  adapted  to  measure  compensation  in  such  ' 
a  special  case.  The  vendor  is  thus  admonished  that  if  he  fail 
to  deliver  the  property  as  agreed,  he  cannot  satisfy  the  injury 
of  the  vendee  by  paying  the  difference  of  a  higher  market 
price,  unless  the  article  can  be  obtained  in  market ;  that  the  loss 
will  be  the  value  of  the  property  which  the  ice  was  needed  to 
preserve. 

In  a  Kew  York  case,^  the  plaintiff  having  contracted  to  sell 
to  the  state  of  Ohio,  a  large  quantity  of  bullets  of  a  certain 
quahty  and  at  a  fixed  price,  deliverable  at  Columbus,  Ohio, 
made  a  contract  with  the  defendants  at  Xew  York,  by  which 
the  latter  agreed  to  manufacture  and  deliver  to  him  the  same 
quantity  and  quahty  of  buUets,  and  at  the  time  of  making  it, 
he  infonned  the  defendant  of  his  arrangement  with  the  state  of 
Ohio,  and  that  he  was  contracting  with  him  for  the  buUets  in 
order  to  fulfil  that  agreement.  The  agreement  between  these 
parties  was  in  writing,  and  did  not  contain  any  allusion  to  the 
special  object  of  making  it,  to  fulfil  the  plaintiff's  contract  with 
the  state  of  Ohio.  It  was  held,  notwithstanding,  that  it  was 
competent  to  prove  such  antecedent  contract,  and  that  the  de- 
fendant was  informed  that  the  plaintiff  made  the  contract  in 
question  with  a  view  to  performing  the  other,  by  parol ;  and  it 

Messmore  v.  The  N.  Y.  S.  &  L.  Co.  40  N.  Y.  422. 
Vol.  I  —  6 


82  COMPENSATION. 

was  held  that  the  proper  measure  of  damages  was  the  differ- 
ence between  the  contract  price,  at  which  the  defendant  was  to 
furnish  the  bullets,  and  the  price  the  plaintiff  was  to  receive. 
It  apj)eared  that  the  market  price  advanced  so  that  the  bullets 
could  not  be  obtained  below  the  price  the  plaintiff  was  to  re- 
ceive ;  the  market  price  was  considerably  higher,  but  the  recov- 
ery was  limited  as  above  stated,  for  that  gave  the  plaintiff 
compensation  for  his  actual  loss,  and  that  vras  the  loss  which 
was  in  contemplation  of  the  parties  when  the  contract  was 
made.  "Where  the  contract  relates  to  commodities  commonly 
purchasable  in  the  market,  it  is  safe  to  say  that  the  pm^chaser  is 
made  whole,  when  he  is  allowed  to  recover  the  difference  between 
the  contract  price  and  the  value  of  the  article  in  the  market  at 
the  time  and  place  of  delivery ;  because  he  can  supply  himself 
with  this  article  by  going  into  market  and  making  his  purchase 
at  such  price,  and  these  are  all  the  damages  he  is  ordinarily  en- 
titled to  recover,  for  nothing  beyond  this  is  within  the  contem- 
plation of  the  parties  when  they  entered  into  the  contract. 
When  the  vendor,  however,  knows  that  the  purchaser  has  an 
existing  contract  for  a  resale  at  an  advanced  price,  and  that  the 
purchase  is  made  to  fulfil  such  a  contract,  the  profits  on  such 
resale  are  those  contemplated  by  the  parties.  In  other  words, 
on  the  ordinary  contract  of  sale,  the  damages  contemplated  by 
the  parties  are  those  which  would  result  with  reference  to  mar- 
ket value,  if  the  subject  of  the  contract  have  such  a  value ; 
otherwise,  on  the  basis  of  its  actual  value,  as  it  may  be  ascer- 
tained by  proof,  or  for  tlie  use  to  wliich  the  property  is  com- 
monly apphed,^  whether  known  or  not.  But  if  the  contract  of 
purchase  is  made  with  a  view  to  a  known  resale,  already  con- 
tracted, or  an}^  known  special  use,  the  damages  which  are  con- 
templated to  result  from  the  vendor's  breach  are  those  which 
would  naturally  result  on  the  basis  of  the  contract  for  resale,  or 
other  special  use,  known  to  the  vendor,  Avhen  the  contract  was 
'made.  The  contemplation  of  damages  will  include  such  as  or- 
dinarily arise  according  to  the  intrinsic  nature  of  the  contract, 
and  the  surrounding  facts  and  circumstances  made  known  to 
the  parties  at  the  maldng  of  the  contract.^ 

'  Rhodes  V.  Baird,  16  Ohio  St,  573;  ^BaYis  v.  Talcott,  14  Barb.  611; 
BoiTies  V.  Hutchinson,  18  C.  B.  N.  Cobb  v.  I.  C.  R.  R.  Co.  38  Iowa,  601; 
S.  465.  Haven  v.  Wakefield,  39  111.  507;  111. 


DAMAGES    CONTEMPLATED    BY   PAKTIES. 


83 


TVhere  an  article  had  been  bargained  for,  for  a  peculiar  and 
exceptional  purpose,  unknown  to  the  seller,  and  had  no  market 


Cent.  R.  E.  Co.  v.  Cobb,  64  111.  128; 
Wimae  v.  Kelly,  34  Iowa,  339;  Van 
Arsdale  v.  Randell,  82  111.  63;  Rogers 
V.  Bemas,  69  Pa.  St.  432;  Hinckley 
V.  Beck^vitli,  13  Wis.  31;  Leonard 
V.  The  N.  Y.  etc.  Tel.  Co.  41  N.  Y. 
544;  Scott  v.  Rogers,  31  N.  Y.  676; 
Hexter  v.  Knox,  63  N.  Y.  561;  True 
V.  International  Tel.  Co.  60  Me.  9; 
Fletcher  v.  Taylor,  17  C.  B.  21; 
Squire  v.  West.  U.  Tel.  Co.  98  Mass, 
233;  Cory  V.  Thames  Iron  Works  Co. 
L.  R.  3  Q.  B.  181;  Barradoile  v. 
Branton,  8  Taunt.  535;  Ex  i^arte 
Cambrian  St.  P.  Co.  L.  R.  6  Eq.  396; 
Dewintv.  Wiltse,  9  Wend.  325;  Dob- 
bins V.  Daquid,  65  El.  464;  Shepard 
V.  M.  G.  L.  Co.  15  Wis.  318;  Rich- 
ardson V.  Chynoweth,  26  Wis.  656; 
Wolcott  V.  Mount,  36  N.  J.  L.  262; 
Burton  v.  Fay,  64  lU.  417;  Grindle 
V.  Eastern  Exp.  Co.  67  Me.  317;  Hy- 
draulic Eng.  Co.  V.  McHaffee,  13  L. 
J.  No.  674-159. 

In  Borries  v.  Hutchinson,  18  C.  B. 
(N.  S.)  445,  the  defendant  contracted 
to  sell  to  the  plaintiff  75  tons  of 
caustic  soda,  an  article  not  ordina- 
rily prociu-able  in  market,  at  a  given 
price,  to  be  delivered  on  the  rails  at 
Liverpool  for  Hull,  25  tons  in  June, 
25  tons  in  July,  and  25  tons  in 
August;  but  he  failed  to  deliver  any 
untU  the  16th  of  September,  between 
which  day  and  the  26th  of  October, 
he  delivered  26  tons  in  all.  At  the 
time  of  entering  into  the  contract, 
the  defendant  was  aware  that  the 
plaintiffs  were  buying  the  soda  for  a 
foreign  coi-respondent,  but  did  not 
know  until  the  end  of  August  that 
it  was  designed  for  St.  Petersburg. 
The  plaintiffs  had,  in  fact,  contracted 
to  sell  the  soda  to  Heitmann,  a  mer- 
chant at  St.  Petersburg,  at  an 
advanced  price,  and  he  had  con- 
tracted to  seU  it  to  one  Heiuburger, 


a  soap  manufacturer  of  that  place, 
for  a  still  further  advance.  In  con- 
sequence of  the  late  delivery  of  the 
26  tons,  the  plaintiffs  were  compelled 
to  pay  a  higher  rate  of  freight  and 
insurance.  This  amounted  to  40?. 
17s.  For  their  failure  to  deUver  the 
remainder  to  Heitmann,  they  were 
called  upon  to  pay  and  actually  paid 
159Z.,  which  he  claimed  as  the  com- 
pensation he  had  been  obliged  to  pay 
Heinbvu-ger,  for  the  failure  to  per- 
form his  sub-contract  with  him.  la 
this  action  by  the  plaintiffs  to  re- 
cover from  the  defendant  for  the 
breach  of  his  contract  with  them,  it 
was  conceded  that  they  were  entitled 
to  recover  the  difference  between 
the  price  (on  the  49  tons  imdelivered) 
at  which  he  had  sold  the  caustic 
soda  to  them,  and  the  price  at  which 
tliey  had  contracted  to  sell  it  to 
Heitmann;  in  other  words,  the  loss  of 
the  profit  on  the  resale;  and  it  was 
held,  that  they  were  also  entitled  to 
recover  the  40Z.  176-.,  the  excess  of 
freight  and  insurance,  which  was  the 
necessaiy  result  of  the  defendant's 
breach  of  contract,  but  that  the  de- 
fendant was  not  chargeable  with  the 
159Z.  which  the  plaintiff  liad  paid  to 
Heitmann  to  compensate  Heinburger 
for  the  loss  of  his  bargain;  this  was 
held  too  remote  a  damage.  As  to 
tlie  latter  item,  Erie,  C.  J.:  "He 
(the  defendant)  had  no  notice  of  the 
subsequent  resale;  and  it  is  not  to  be 
assumed  that  the  parties  contem- 
plated that  he  was  to  be  held  respon- 
sible for  the  failure  of  any  number 
of  subsales.  These  could  not  in  any 
sense  be  considered  as  the  direct, 
natural  or  necessary  consequence  of 
the  breach  of  tlie  contract  he  was 
entering  into."  Hiude  v.  LiddeU,  L. 
R.  10  Q.  B.  265. 


84  coarPENSATioN. 

value,  it  was  held  that  the  vendor  was  liable  for  the  damages 
which  would  have  been  sustained  for  the  purpose  for  which  the 
seller  supposed  it  would  be  used.^ 

If  the  vendor  has  notice  that  his  vendees  have  contracted  to 
resell  the  article,  he  will  be  held  hable  for  loss  of  profits  by  such 
resale,  if  he  fails  to  fulfil  his  contract,  though  he  was  not  in- 
formed of  the  price  in  the  contract  to  resell,  unless  there  is  a 
market  value  of  the  article,  and  the  reselling  price  is  of  an 
unusual  and  exceptional  character.^ 

Since  the  decision  of  IlacUey  v.  Baxendale^  the  rule  first 
stated  in  that  case  for  ascertaining  damages  which  are  recover- 
able for  breach  of  contract,  namely,  that  they  be  such  as  arise 
"  naturally,  i.  e.,  according  to  the  usual  course  of  things  from 
such  breach  of  contract  itself,"  has  been  universally  assented  to ; 
and  also  what  is  said  in  the  opinion  of  Alderson,  B.,  to  the  effect, 
if  a  contiMct  be  made  under  special  circumstances,  which  are 
unknown  to  the  party  breaking  the  contract,  that  they  cannot 
be  taken  into  consideration  for  the  purpose  of  enhancing  the 
damages ;  that  such  a  defaulting  party,  at  the  most,  can  only  be 
supposed  to  have  had  in  his  contemplation,  the  amount  of  injury 
wliich  would  arise  from  such  a  breach  generally  in  the  great 
multitude  of  cases,  unaffected  by  any  special  cu-cumstances.^ 

His  observations,  however,  in  favor  of  a  more  extended  habil- 
ity,  embracing  damages  brought  within  the  contemplation  of  the 
parties  at  the  time  of  contracting,  by  communication  of  special 
circumstances,  have  been  the  subject  of  some  criticism  and  con- 
flict of  opinion.  In  England,  however,  the  cases  have  been 
uniformly  decided  in  conformity  to  the  doctrine  of  that  case  ; 
but  there  have  been  dicta  in  several  of  a  contrary  tendency, 
especially  with  reference  to  its  application  to  carriers,  who  were 

'  Cory  V,  Thames  Iron  "Works  Co.  v.  Mayor,  etc.  of  Brooklyn,  7  Hill, 

L.  R.  3  Q.  B.  181.  61;  Cuddy  t.  Major,  13  Mich.   368; 

sBoothv.  SpuytenDuyvilR.  M.Co.  Johnson  v.  Matthews,  5  Kans.  118; 

60  N.  Y.  487;  Home  v.  Midland  R'y  Lawrence  v.  Wardwell,  6  Barb.  423; 

Co.  L.  R.  8  C.  P.  134.  Portman  v.  Middleton,  4  C.  B.  N.  S, 

39  Exch.  341.  323;  Gee  v.  Lancashire,  etc.  R'y  Co. 

4 Griffin  v.  Colver,  16  N.  Y.  490;  6H.  &N.  211;  Hales  v.  London,  etc. 

Graham  v.  Western  U.    Tel.  Co.  3  R'y  Co.  4  B.  &  S.  66;  Travis  v.  Daf- 

Col.;  Sanders  v.  Stuart,  1  C.  P.  D.  fan,  20  Tex.  49;  Fox  v.  Harding,  7 

336;  Great  Western  R'y  Co.  v.  Red-  Cush.  516. 
mayne,  L.  R.  1  C.  P.  329;  Masterson 


DAMAGES    CONTE]SIPLATED   BY    PARTIES. 


85 


supposed  to  have  no  option  to  refuse  to  accept  goods  offered  for 
transportation,  in  view  of  increased  responsibility  on  account  of 
notice  of  special  circumstances,  unless  an  increased  compensation 
be  paid.^    The  tendency  of  the  decisions  there  appears  to  be  to 


'  In  Borries  v.  Hutchinson,  18  C. 
B.  N.  S.  445,  and  in  Smeed  v.  Foord, 
1  E.  &  E.  602,  the  damages  were 
larger  and  the  recovery  sustained,  by- 
reason  of  the  defendant  having  no- 
tice of  the  purpose  of  the  other  party 
in  making  the  contract.  Hobbs  v. 
London,  etc.  R  y  Co.  L.  R.  10  Q.  B. 
Ill;  Smith  v.  Green,  1  C.  P.  D.  93; 
Simpson  v.  London,  etc.  R'y  Co.  1  Q. 
B.  D.  274;  Wilson  v.  General  Iron  S. 
Co.  47  L.  J.  N.  S.  Q.  B.  239.  In  Brit- 
ish Columbia  Saw  Mill  Co.  v.  Nettle- 
ship,  L.  R.  3  C.  P.  499,  tlie  plaintiffs 
delivered  to  the  defendant  for  car- 
riage to  Vancouver's  Island,  several 
cases  of  machinery  intended  for  the 
erection  of  a  saw  niUl.  The  defend- 
ant knew  generally  that  the  cases 
contained  machinery.  On  the  arri- 
val of  the  vessel  at  her  destination, 
one  of  the  cases  which  contained 
parts  of  the  machinery  was  missing, 
and  without  these  parts  the  mill 
could  not  be  completed.  The  plaint- 
iffs were  obliged  to  replace  these 
parts  from  England,  at  a  cost,  includ- 
ing freight,  of  353Z.  17s.  9d.,  and  suf- 
fer a  delay  of  twelve  months.  A  fair 
rate  of  hire  of  the  machinery,  ap- 
plied to  the  purposes  for  which  it  was 
required  by  the  plaintiffs,  woidd 
have  been,  for  twelve  months,  2,646Z. 
2s.  del.,  and  the  plaintiffs  sought 
to  recover  that  amount,  but  it  was 
held  not  recoverable,  because  the  de- 
fendant did  not  know  that  the  miss- 
ing case  contained  portions  of  the 
machinery  which  could  not  be  re- 
placed at  Vancouvei''s  Island,  and 
without  which  the  rest  could  not  be 
put  together.  Willes,  J.,  said:  "  The 
conclusion  at  which  we  are  invited 
to  aiTive  would  fix  upon  the  ship- 


owner, beyond  the  value  of  the  thing 
lost  and  the  freight,  the  further  lia- 
bility to  account  to  the  intended  mill- 
owners,  in  the  event  of  a  portion  of 
the  machinery  not  arriving  at  all, 
or  aiTiving  too  late,  through  accident 
or  his  default,  for  the  full  profits 
they  might  have  made  by  the  use  of 
the  mill,  if  the  trade  were  successful 
and  without  a  rival.  If  that  had 
been  presented  to  the  mind  of  the 
ship-owner  at  the  time  of  making 
the  contract,  as  the  basis  upon  which 
he  was  contracting,  he  would  at 
once  have  rejected  it.  And,  though 
he  knew  from  the  shippers  the  use 
they  intended  to  make  of  the  arti- 
cles, it  could  not  be  contended  that 
the  mere  fact  of  knowledge,  with- 
out more,  would  be  a  reason  for  im- 
posing upon  him  a  greater  degree  of 
liability  than  would  otherwise  have 
been  cast  upon  him.  To  my  mind, 
that  leads  to  the  inevitable  conclu- 
sion, that  the  mere  fact  of  knowledge 
cannot  increase  the  liability.  The 
knowledge  must  be  brought  home 
to  the  paiiy  sought  to  be  charged, 
under  such  circumstances,  that  he 
must  know  that  tlie  person  he  con- 
tracts with  reasonably  beUeves  that 
he  accepts  the  contract  with  the 
special  condition  attached  to  it.  Sev- 
eral circumstances  occur  to  one's 
mind  in  this  case  to  show  that  there 
was  no  such  knowledge  on  the  de- 
fendant's part  which  would  warrant 
the  conclusion  contended  for  by  the 
plaintiffs.  In  the  first  place,  the 
carrier  did  not  know  that  the  whole 
of  the  machinery  would  be  useless 
if  any  portion  of  it  failed  to  arrive, 
or  what  that  particular   part  was. 


86 


COMPENSATION. 


require  the  special  purpose  of  the  contract  to  be  so  far  in  view, 
when  the  contract  is  made,  that  it  is  reasonable  to  infer  a  tacit 
acceptance  of  it  as  made  for  the  accomplishment  of  that  object, 
and  a  tacit  consent  to  be  bound  to  more  than  the  ordinary  dam- 
ages in  case  of  default  on  that  account ;  otherwise  the  damages 

the  goods  assenting  to  the  increased 
responsibility  as  part  of  the  contract. 
Kelly,  C.  B.,  said  on  appeal  (L.  R.  8 
C.  P.  136;  42  L.  J.  C.  P.  59):  "The 
goods  Avith  which  we  have  to  deal 
are  not  the  subject  of  any  express 
statutory  enactment;  the  case  in  re- 
gard to  them  depends  on  the  common 
law,  taken  in  connection  with  the 
acts  relating  to  the  defendant's  rail- 
way company.  Now  it  is  clear,  in 
the  first  place,  that  a  railway  com- 
pany is  bound,  in  general,  to  accept 
goods  such  as  these  and  caiTy  them 
as  directed  to  the  place  of  delivery, 
and  there  deliver  them.  But  suppose 
that  an  intimation  is  made  to  the 
railway  company,  not  merely  that  if 
the  goods  are  not  delivered  by  a  cer- 
tain date  they  will  be  thrown  on  the 
consignor's  hands,  but  in  express 
terms  stating  that  they  have  entered 
into  such  and  such  a  contract,  and 
will  lose  so  many  pounds  if  they  can- 
not fulfil  it;  what  is  then  the  posi- 
tion of  the  company  ?  Are  they  the 
less  bound  to  receive  the  goods  ?  I 
apprehend  not.  If  then  they  are 
bound  to  I'eceive,  and  do  so  without 
more,  what  is  the  effect  of  the 
notice  ?  Can  it  be  to  impose  on  them 
a  liability  to  damages  to  any  amount, 
however  large,  in  respect  of  goods 
which  they  have  no  option  but  to 
receive  ?  I  cannot  find  any  author- 
ity for  the  proposition  that  the  notice, 
without  more,  could  have  any  such 
effect.  It  does  not  appear  to  me  that 
tlie  railway  company  has  any  power, 
such  as  was  suggested,  to  decline  to 
receive  the  goods  after  such  a  notice, 
unless  an  extraordinary  rate  of  car- 
riage be  paid.     Of  course,  they  may 


ation.  He  did  not  know  that  the 
part  which  was  lost  could  not  be  re- 
I)laced  without  sending  to  England. 
And,  applying  what  I  have  before 
suggested,  if  he  did  know  this,  he 
did  not  know  it  under  such  circum- 
stances as  could  reasonably  lead  to 
the  conclusion  that  it  was  contem- 
plated at  the  time  of  the  contract 
that  he  would  be  liable  for  all  these 
consequences  in  the  event  of  a 
breach.  Knowledge  on  the  part  of 
the  carrier  is  only  important  if  it 
forms  part  of  the  contract.  It  may 
be  that  the  knowledge  is  acquired 
casuaUy  from  a  stranger,  the  person 
to  whom  the  goods  belong  not  know- 
ing or  caring  whether  he  had  such 
knowledge  or  not.  Knowledge,  in 
effect,  can  only  be  evidence  of  fraud, 
or  of  an  understanding  by  both 
parties  that  the  contract  is  based 
upon  the  circumstances  which  are 
communicated."  In  the  svibsequent 
case  of  Home  v.  Midhind  Railway 
Co.  L.  R.  7  C.  P.  583,  the  defendant, 
as  a  carrier,  was  guilty  of  a  negligent 
delay  in  the  transportation  of  goods 
consigned  to  fill  a  special  contract  at 
an  exceptionally  high  price.  The 
carrier  had  notice  that  the  goods 
were  for  a  purchaser  who  would  not 
take  them  unless  they  were  offered 
on  time;  but  the  carrier  was  not  in- 
formed of  the  contract  price.  It 
was  considered  that  the  notice  was 
not  sufficient  to  charge  the  def  aiilt- 
ing  carrier  Avith  damages,  computed 
on  the  basis  of  tlie  loss  of  the  bargain 
for  such  an  unusiial  and  exceptional 
price.  It  was  also  held  that  the 
notice  must  be  such  as  leads  to  the 
inference  that  the  carrier   accepts 


da:siages  contemplated  by  paeties. 


8T 


in  respect  of  that  object  are  not  deemed  to  have  been  within 
the  contemplation  of  the  parties.  This  is  probably  also  the 
doctrine  of  the  American  comls.  The  parties  are  not  supposed 
to  actually  intend  to  pay  damages  by  any  other  than  a  legal 
standard,  unless  they  formally  liquidate  the  damages,  whether 

enter  into  a  contract,  if  they  will, 
to  pay  any  amount  of  damages  for 
the  non-performance  of  their  con- 
tract, in  consideration  of  an  in- 
creased rate  of  carriage,  if  the 
consignors  are  willing  to  pay  it;  but 
in  the  absence  of  any  such  contract, 
expressly  entered  into,  there  being 
no  power  on  the  part  of  the  company 
to  refuse  to  accept  the  goods  or  to 
compel  payment  of  an  extraordinary 
rate  of  carriage  by  the  consignor,  it 
does  not  appear  to  me  that  any  con- 
tract to  be  liable  to  more  than  the 
ordinary  amount  of  damages  can  be 
implied  from  mere  receipt  of  the 
goods  after  such  a  notice  as  before 
mentioned." 

In  Elbinger  Actien  Geselschafft 
V.  Ai-mstroug,  L.  R.  9  C.  B.  473,  the 
plaintiff  contracted  for  the  purchase 
of  666  sets  of  Avheels  and  axles, 
which  he  designed  to  use  in  the  mau- 
ufactiu-e  of  wagons;  and  the  wagons 
he  had  contracted  to  sell  and  deliver 
to  a  Russian  company,  by  a  certain 
day,  or  forfeit  two  roubles  a  wagon 
per  day.  The  defendant,  who  con- 
tracted to  sell  the  wheels  and  axles, 
was  iuf  oiTued  of  the  other  contract, 
but  not  of  the  amount  of  the  penal- 
ties. Some  delay  occurred  in  the 
plaintiff's  deliveries,  by  the  defend- 
ant's fault,  and,  in  consequence,  the 
plaintiff  had  to  pay  lOOL  in  penalties; 
and  the  action  was  brought  to  re- 
cover that  sum  of  the  defendant. 
There  was  no  market  in  which  the 
goods  could  be  obtained,  and  it  was, 
therefore,  contended  in  behalf  of 
the  defendant,  that  only  nominal 
damages  could  be  recovered.  The 
comt  held  the  defendant  liable  for 


substantial  damages,  not  for  the 
penalties  the  plaintiff  had  been 
obliged  to  pay,  the  defendant  hav- 
ing no  notice  of  them,  but  the 
reasonable  value  of  the  use  of  the 
wagons  during  the  delay.  A  verdict 
of  1001  was  sustained.  But  the  court, 
by  Blackburn,  J.,  remarked:  "  If  we 
tliought  that  this  amount  could  only 
be  come  at  by  laying  down  as  a 
proposition  of  law,  that  the  plaintiffs 
were  entitled  to  recover  the  penalties 
actually  paid  to  the  Russian  com- 
pany, we  should  pause  before  we 
allowed  the  verdict  to  stand."  After 
referring  to  Hadley  v.  Baxendale,  he 
continued:  "  But  an  inference  has 
b^en  drawn  from  the  language  of  the 
judgment,  that  whenever  there  has 
been  notice,  at  the  time  of  the  con- 
tract, that  some  unusual  conse- 
quence is  likely  to  ensue,  if  the 
contract  is  broken,  the  damages 
must  include  that  consequence;  but 
this  is  not,  as  yet,  at  least,  estab- 
hshed  law.  In  Mayne  on  Damages 
(p.  10,  2d  ed.  by  Lumley  Smith),  in 
commenting  on  Hadley  v.  Baxen- 
dale, it  is  said:  'The  principle  laid 
down  in  the  above  judgment,  that 
a  party  can  only  be  held  responsible 
for  such  consequences  as  may  be 
reasonably  supposed  to  have  been  in 
the  contemplation  of  both  parties,  at 
the  time  of  making  the  conti'act, 
and  that  no  consequence,  which  is 
not  the  necessary  result  of  a  breach, 
can  be  supposed  to  have  been  so  con- 
templated, unless  it  w^as  communi- 
cated to  the  other  party,  are,  of 
course,  clearly  just.  But,  it  may  be 
asked,  %\ath  great  deference,  whether 
the  mere  fact  of  such  consequences 


COMPENSATION". 


there  are  special  circumstances  or  not.  They  know  the  legal 
principle  of  compensation,  and  the  rules  subsidiary  to  it ;  and 
when  they  do  not  liquidate  the  damages,  tliey  are  content  ta 
enter  into  the  contract  and  leave  the  measure  of  liabiUty  to  be 
decided  by  law ;  they  know  that  the  law  wUl  require  them  to 


being  comniuuicated  to  the  other 
party  will  be  sufficient,  without  go- 
ing on  to  show  that  he  was  told 
that  he  would  be  answerable  for 
them,  and  consented  to  undertake 
such  a  liability.  .  .  .  The  law 
says,  that  every  one  who  breaks  a 
contract  shall  pay  for  its  natural 
consequences;  and,  in  most  cases, 
states  what  those  consequences  are. 
Can  the  other  party,  by  merely  ac- 
quainting him  with  a  number  of 
further  consequences,  which  the  law 
would  not  have  implied,  enlarge  his 
responsibility,  without  any  contract 
to  that  effect  ? '  We  are  not  aware 
of  any  case  in  w^hich  Hadley  v.  Bax- 
endale  has  been  acted  upon  in  anj 
such  way  as  to  afford  an  answer  to 
the  learned  author's  doubts;  and,  in 
Home  V.  Midland  R'y  Co.  (L.  R.  8  C. 
P.  131),  much  that  fell  from  the 
judges,  in  the  exchequer  chamber, 
tends  to  confirm  those  doubts."  In 
this  case,  the  court  held  that  the 
plaintiff  was  not  entitled  to  damages 
for  the  delay,  exceeding  the  penalty 
he  was  bound  for  and  had  paid  to 
his  vendee.  In  Hinde  v.  Liddell,  L.  R. 
10  Q.  B.  265,  the  defendant  con- 
tracted to  supply  the  plaintiff 
2,000  pieces  of  grey  shirtings,  to  be 
delivered  on  the  20th  of  October, 
certain,  at  so  much  per  piece,  the 
defendant  being  informed  that  they 
were  for  shipment.  Shortly  before 
the  20th  of  October,  the  defendant 
informed  plaintiff  that  he  would  be 
unable  to  complete  his  contract  by 
the  time  specified;  and,  thereupon, 
the  plaintiff  endeavored  to  get  the 
shu'tings  elsewhere,  but,  there  being 
no  market  in  England  for  it,  that 


kind  of  shirtings  could  only  be  pro- 
cured by  a  previous  order  to  manu- 
facture it.  The  plaintiff,  therefore,  in 
order  to  ship  according  to  his  con- 
tract with  his  sub-vendee,  pro- 
cured 2,000  pieces  of  other  shirt- 
ings, of  a  somewhat  superior 
quality,  at  an  increase  of  price, 
which  the  sub-vendee  accepted, 
but  paid  no  advance  in  price 
to  plaintiff.  The  plaintiff  recovered 
against  the  defendant  this  excess 
over  the  contract  price.  It  is  mani- 
fest that  the  plaintiff  suffered  dam- 
age to  that  amount,  bj"  reason  of 
delivering  the  substituted  article  to 
his  vendee,  without  realizing  any- 
thing for  having  procured  an  artide 
of  superior  quality.  Is  it  possible 
that  if  there  had  been  no  sub-con- 
tract which  necessitated  this  loss, 
and  the  plaintiff  had  the  article  on 
hand,  that  he  could  have  recovered 
damages  by  that  standard  ?  It 
would  have  been  said,  that  no  loss 
could  be  inferred  from  such  a  pur- 
chase. Borries  v.  Hvitchinson  !was 
approved  and  said  to  be  directly  in 
point,  and  the  same  judge,  Black- 
burn, J.,  said,  in  giving  judgment: 
"  In  the  present  case,  the  goods  are 
for  a  foreign  market;  and  it  was  ad- 
mitted that  the  only  reasonable 
thmg  the  plaintiff  could  do  was  to 
put  himself  in  the  same  jjosition  as 
if  the  defendants  had  fulfilled  their 
contract,  by  obtaining  a  somewhat 
dearer  article.  I  do  not  see  on  what 
principle  it  can  be  said  that  the 
I^laintiff  is  not  entitled  to  recover  this 
difference  in  price.  We  do  not  de- 
cide anything  as  to  what  the  effect 
of  a  notice  of  the  plaintiff's  sub-con- 


DAMAGES    CONTEMPLATED   BY    PARTIES. 


8& 


make  compensation,  in  case  of  a  breach,  for  damages  Tvliich 
directly  arise  therefrom,  in  view  of  the  intrinsic  nature  of  the 
contract,  and  of  the  special  circumstances  known  to  them,  when 
it  was  made,  which  disclose  some  particular  object  different  from 


tract  might  have  been.  Under  the 
circumstimces,  the  value  of  the 
goods  contracted  to  be  supphed  by 
the  defendants,  at  the  time  of  their 
breach  of  contract,  was  the  price 
the  plaintiff  had  to  give  for  the  sub- 
stituted article." 

In  the  later  case  of  Simpson  v. 
Northwestern  R'y  Co.  1  Q.  B.  D. 
274,  the  plaintiff,  who  was  a  manu- 
facturer of  cattle  food,  was  in  the 
habit  of  sending  samples  of  his 
goods  to  cattle  shows,  with  a  show- 
tent  and  banners,  and  attending 
there  liimself  to  attract  custom.  He 
intended  to  exhibit  some  of  these 
samples  at  the  Newcastle  show,  and 
delivered  them,  for  transmission,  to 
the  defendants.  The  contract  was 
made  with  the  defendants'  agent  at 
a  cattle  show  at  Bedford,  where  the 
plaintiff  had  been  exhibiting  his 
samples,  and  where  the  defendants 
had  an  agent  and  office  on  the  show 
ground  for  the  purpose  of  seeking 
traffic.  The  evidence,  as  to  the  terms 
of  the  contract,  was  that  a  consign- 
ment note  was  filled  up  by  the  plaint- 
iff's son,  consigning  the  goods,  as 
" boxes  of  sundries  "  to  "Simpson & 
Co.,  the  show  ground,  Newcastle  on 
Tyne,"  and  that  he  indorsed  the 
note  "  must  be  at  Newcastle  on  Mon- 
day, certain,"  meaning  the  next 
Monday,  the  20th  July.  Nothing 
was  expressly  said  as  to  the  i)laint- 
iff's  intention  to  exhibit  the  goods  at 
Newcastle,  nor  as  to  the  goods  being 
samples.  They  did  not  arrive  until 
several  days  after  time,  and  when 
the  show  was  over.  It  was  found 
that  the  plaintiff  obtained  custom 
by  exhibiting  his  samples  at  shows, 
but  no  evidence  was  given  as  to  his 


prospects  with  regard  to  the  New- 
castle show  in  particular.  A  verdict 
by  consent  w^as  entered  for  30Z.  be- 
yond a  sum  vfhich  had  been  paid  in, 
with  leave  to  move  to  enter  the  ver- 
dict for  the  defendants,  if  the  court 
should  be  of  opinion  that  the  plaint- 
iff was  not  entitled  to  recover  for 
either  loss  of  time  in  waiting  for  the 
goods,  or  loss  of  profits.  It  was 
held  that  the  plaintiff  was  entitled 
to  the  verdict.  Cockburn,  C.  J., 
said:  "The  law,  as  it  is  to  be  found 
in  the  reported  cases,  has  fluctuated; 
but  the  principle  is  now  settled  that, 
whenever  either  the  object  of  the 
sender  is  specially  brought  to  the 
notice  of  the  carrier,  or  circum- 
stances are  known  to  the  carrier, 
from  which  the  object  ouglit  in  rea- 
son to  be  inferred,  so  that  the  object 
may  be  taken  to  have  been  within  the 
contemplation  of  both  parties,  dam- 
ages may  be  recovered  for  the 
natural  consequences  of  the  failure 
of  that  object."  Mayne  on  Dam.  31. 
This  author  says:  "In  the  present 
state  of  the  authorities,  therefore,  I 
would  suggest  that  in  place  of  the 
third  ride  supposed  to  be  laid  down 
by  Hadley  v.  Baxendale,  the  law 
may  perhaps  be  as  follows: 

"First  —  Where  there  are  special 
circumstances  connected  with  a 
contract,  which  may  cause  special 
damages  to  foUow  if  it  is  broken, 
mere  notice  of  such  circumstances 
given  to  one  party  will  not  render 
him  liable  for  the  special  damage, 
imless  it  can  be  inferred  from  tlie 
whole  transaction  that  he  consented 
to  become  liable  for  such  special 
damage. 

"Secondly — Where  a  person  having 


90 


COMFEKSATION. 


or  beyond  that  wliich  would,  be  suggested  by  the  mere  words  of 
the  contract.^  Doubtless  it  is  essential  in  order  to  bring  within 
the  contemplation  of  the  parties,  damages  different  from  and 
larger  in  amount  than  those  which  usually  ensue,  that  the  special 
circumstances  out  of  which  they  naturally  proceed  shall  have 
been  known  to  the  party  sought  to  be  made  liable,  in  such  man- 
ner, at  the  time  of  contracting,  as  to  make  it  manifest  to  him 
that  if  compensation,  in  case  of  a  breach  on  his  part,  is  accorded 
for  actual  loss,  it  must  be  for  a  loss  resulting  from  that  special 
state  of  things  which  those  circumstances  portended.  Damages 
are  not  the  primary  purpose  of  contracts,  but  are  given  by  law 
in  place  of  and  as  a  compensation  and  equivalent  for  something 
else  which  had  been  agreed  to  be  done,  and  has  not  been  done. 
What  the  damages  would  ordinarily  be  on  such  a  default  is 


knowledge  or  notice  of  such  special 
circumstances  might  refuse  to  enter 
into  the  contract  at  all,  or  might  de- 
mand a  higher  remuneration  for  en- 
tering into  it,  the  fact  that  he  accepts 
the  contract  without  requiring  any 
higher  rate  will  be  evidence,  though 
not  conclusive  evidence,  fi'om  which 
it  may  be  inferred  that  he  has  ac- 
cepted the  additional  risk  in  case  of 
breach. 

"Thirdly  —  Where  the  defendant 
has  no  option  of  refusing  the  con- 
tract, and  is  not  at  liberty  to  require 
a  higher  rate  of  remuneration,  the 
fact  that  he  proceeded  in  the  con- 
tract after  knowledge  or  notice  of 
such  si^ecial  circumstances,  is  not  a 
fact  from  which  an  undertaking  to 
incur  a  liability  for  special  damages 
can  be  inferred. 

"Fourthly  —  Even  if  there  were 
an  express  contract  by  the  defendant 
to  pay  for  special  damages,  under 
the  circumstances  last  supposed,  it 
might  be  questioned  whether  such  a 
contract  would  not  be  void  for  want 
of  consideration.  Take  the  case  of 
a  railway  passenger  who  buys  his 
ticket,  informing  the  clerk  of  some 
particular  loss  which  would    arise 


from  his  being  late.  Suppose  the 
clerk  were  to  undertake  that  the 
company  would  be  answerable  for 
the  loss,  and  that  such  undertaking 
should  be  held  to  be  within  the 
sphere  of  his  duty.  Would  it  not 
be  purely  gratuitous  ?  The  consider- 
ation for  any  promise  by  the  com- 
pany, arising  from  the  payment  of 
the  fare,  would  be  exhausted  by 
their  carrying  the  passenger  to  his 
destination,  or  paying  the  ordinary 
damages  for  failure  to  do  so.  What 
would  there  be  left  to  support  the 
special  undertaking  to  pay  an  excep- 
tional penalty  ?  " 

'Booth  V.  Spuyten  Duyvil  R.  M. 
Co.  60  N.  Y.  487.  In  this  case,  Church, 
C.  J. ,  said,  referring  to  the  English 
cases:  "Some  of  the  judges  in  com- 
menting uj)on  it  (the  doctrine  under 
consideration),  have  held  that  a  bare 
notice  of  special  circumstances 
which  might  result  from  a  breach  of 
the  contract,  unless  under  such  cir- 
cumstances as  to  imply  that  it 
formed  the  basis  of  the  agreement, 
would  not  be  sufficient.  I  concur 
\vith  the  view  expressed  in  these 
cases,  and  I  do  not  think  that  the 
court  in  Hadley  v.   Baxendale  in- 


DAMAGES    CONTEMPLATED   BY   PARTIES.  91 

immaterial,  if  the  contracting  party  assmned  the  obhgation, 
which  he  has  broken,  with  a  knowledge  of  a  peculiar  state  of 
facts  connected  with  the  contract  which  indicated  that  other 
damages  would  result  from  a  breach,  and  the  latter  are  claimed. 
To  confine  the  injured  party's  recovery  in  such  case  to  the 
lighter  damages  which  usually  follow  such  a  breach,  where  no 
such  knoAvn  special  facts  exist,  and  exclude  those  which  were 
thus  brought  within  the  contemplation  of  the  parties,  would  be 
to  sacrifice  substantial  rights  to  arbitrary  rule ;  to  set  aside  the 
2:>rinciple  which  entitles  a  party  to  compensation  commensm^ate 
with  his  injiuy,  to  give  effect  to  a  rule  formulated  to  render  that 
principle  effectual;  it  would  be  to  apph^  a  subordinate  rule 
where  it  has  no  application,  instead  of  the  principle,  which  is 
paramount,  and  always  applical^le.  What  are  the  usual  dam- 
ages which  result  from  the  breach  of  a  contract  ?  There  is  cer- 
tainly no  customary  amount ;  nor  is  there  any  rule  of  damages 
which  is  universal,  like  the  principle  for  allowance  of  due  com- 
pensation. If  it  is  a  contract  of  sale,  and  the  vendor  refuses  to 
complete  it,  one  rule  is  to  ascertain  that  compensation  by  the 
difference  between  the  contract  price  and  the  market  value,  be- 
cause if  the  article  which  is  the  subject  of  the  contract  can  be 
obtained  in  market  at  a  market  price,  the  vendee  is  thereby  en- 
abled to  supply  himself  without  loss.  That  rule  goes  no  fur- 
ther, but  the  principle  does.  Where  the  vendee  cannot  obtain 
the  article  in  the  market,  nor  at  all,  if  the  vendor  refuses  to 
perform  his  contract,  that  rule  is  not  appUcable,  and  then  resort 

tended  to  lay  down  any  different  limited  in  his  contract,  cannot  be 

docti-ine."      But    the    defendant  in  held  for  the  loss  occasioned  to  the 

this  case  was  held  to  be  liable  for  the  owner  of  the  road  by  reason  of  an- 

loss  BUstained*on  a  contract  which  other  contract  between  him  and  a 

the    plaintiffs    had  with    the  New  third  party,  for  tlie  use  of  the  road 

YorkCentralRaih-oad  Co.,  by  reason  after  the  time  it  should  have  been 

of  the  defendant's  breach,  and  that  completed,   even    though    he    may 

loss  was  held  to  be  brought  within  have  known  of  the  existence  and  the 

the  contemplation  of  the  parties  by  terms  of  such  other  contract  at  the 

mere  notice,    generally,  that  there  time  of  entering  into  his  own,  un- 

was  a  contract  depending  on  the  de-  less  he  expressly  agrees  to  such  a 

fendant's  performance.  rate  of  damages.    A  similar  doctrine 

In  SneU  v,  Cottingham,  72  111.  161,  is  laid  down  in  Bridges  v.  Stickney, 

it  was  held  that  a  contractor  who  38  Me.  369.     See  Clark  v.  Moore,  3 

fails  to  finish  a  railroad  by  the  time  Mich.  55. 


92  COMPENSxVTION. 

must  be  had  to  other  elements  of  vahie ;  and  recourse  is  had  to 
the  principle  to  determine  the  measure  of  redress ;  even  a  con- 
tract of  resale,  made  by  the  vendee,  and  of  which  the  vendor 
had  no  notice,  may  be  considered.^  And  if  the  goods  were  not 
bought  for  resale,  and  had  no  market  value,  but  were  intended 
for  some  special  use,  the  damages  would  be  computed  according 
to  the  value  for  a  use  to  .which  the  property  was  most  ob\dously 
adapted,  unless  the  vendor  knew  of  the  intention  to  apply  it  to  a 
different  one.^  Its  dehvery  in  the  case  where  a  contract  of  resale 
existed  would  have  enabled  the  vendee  to  obtain  the  reseUing 
price,  and  in  the  other  to  avoid  the  loss  which  has  otherwise 
resulted  from  being  deprived  of  the  property.  Such  recoveries 
are  not  unusual.  It  may  be  said  that  sales  are  generally  made 
of  articles  having  a  market  value.  True.  But  there  is  no  uniform 
relativeness  between  the  contract  and  market  prices.  The 
defaulting  vendor  wiU.  pay  nominal  damages  when  the  market 
price  is  less  than  the  contract  price,  and  substantial  damages 
according  to  the  excess  of  the  former  at  the  tune  the  goods  should 
have  been  deUvered.  "When  the  vendor  refused  to  deliver  ice 
according  to  his  contract,  knowing  when  he  made  the  agreement 
that  it  was  wanted  as  a  means  of  preserA^ng  fresh  meat  in  the 
prosecution  of»  the  vendee's  business  ;  and  the  ice  could  not  be 
obtained  in  market,  what  should  be  deemed  the  usual  damages 
for  a  breach  of  the  contract  ?  Certainly  not  what  had  been  the 
market  price,  when  ice  was  plenty,  and  could  be  had  from  other 
sources ;  but  its  value  when  it  should,  according  to  the  contract, 
have  been  delivered,  and  when  the  vendor,  as  the  fact  probably 
may  be,  alone  could  supply  it,  and  when  the  vendee  must  have 
it  or  lose  a  certain  amount  of  meat,  notwithstanding  his  best 
endeavors  by  other  means  to  preserve  it.^ 

If  the  contract  is  made  to  serve  a  particular  purpose,  not 
communicated  and  known  to  both  parties,  nor  indicated  by  the 
subject  matter  of  the  contract,  and  the  loss  in  respect  to  that 
purpose  is  so  exceptional  as  neither  to  be  within  the  contempla- 
tion of  the  parties  at  the  maldng  of  the  contract,  nor  within 

>  France  v.  Gaudet,  L.  R.  6  Q.  B.  ^  Coiy  v.  Thames  Iron  Works  Co. 

199;   McHose  v.  Fulmer,  73  Pa.  St.      L.  R.  3  Q.  B.  181. 
365.  ^  Hammer  v.  Schoenf  elder,  47  "Wis. 

455. 


DAilAGES    CONTEMPLATED    BY    PARTIES.  93 

the  first  brancli  of  the  rule  laid  down  in  Iladley  v.  Baxendale, 
it  cannot  be  recovered ;  but  where  the  injury  was  withhi  the 
contemplation  of  the  parties,  if  they  gave  the  subject  consider- 
ation, when  the  contract  was  made,  they  were  admonished  by 
the  prevalence  of  the  principle  of  compensation  in  the  law,  that 
if  they  do  not  perform,  the  alternative  of  making  reparation,  on 
the  scale  of  equivalence  to  the  actual  injury,  will  be  compulsory ; 
and  there  is  no  need  of  any  agreement  to  submit  to  such  a  legal 
consequence.  The  law  as  laid  down  in  Iladley  v.  Baxendale 
has  been  generally  accepted  in  this  country,  embracing  all  such 
damages  as  may  reasonably  be  supposed  to  have  been  in  the 
contemplation  of  both  parties  at  the  time  they  made  the  con- 
tract, as  the  probable  result  of  the  breach  of  it.^  And  in  ac- 
cordance with  the  doctrine  of  that  case,  it  is  sufficient,  if  the 
special  cu'cumstances  under  which  the  contract  was  actually 
made,  were  communicated  to  the  party  sought  to  be  charged, 
and  the  damages  resulting  from  the  breach  are  such  as  both 
parties  would  reasonably  contemplate  would  be  the  amount  of 
the  injury  which  would  ordinarily  follow  from  a  breach  under 
those  special  circumstances.  As  said  by  Selden,  J.:  "  The  broad 
general  rule  ...  is,  that  the  party  injured  is  entitled  to 
recover  all  his  damages,  including  gains  prevented  as  well  as 
losses  sustained ;  and  tliis  rule  is  subject  to  but  two  conditions. 
The  damages  must  be  such  as  may  fauiy  be  supposed  to  have 
entered  into  the  contemplation  of  the  parties  when  they  made 
the  contract ;  that  is,  must  be  such  as  might  natm-ally  be  ex- 
l^ected  to  follow  its  violation ;  and  they  must  be  certain  both  in 
their  nature  and  in  respect  to  the  cause  from  which  they  pro- 
ceed." ^  And  this  leads  naturally  to  the  consideration  of  the 
certainty  which  is  necessary  to  warrant  the  recovery  of  dam- 
ages. 

>  9  Exch.  353.      « Griffin  v.  Colver,  16  N,  Y.  494. 


94  compensation. 

Section  5. 

required  certainty  op  damages. 

lAability  for  principal  loss  extends  to  details  and  incidents  —  Only  certain 
items  recoverable  —  Recovery  on  successive  consequences  —  Required 
certainty  to  recover  for  anticipated  profits — Warranty  of  seeds  — 
Prospective  growth  of  fruit  orchard  —  Profits  of  special  contracts  — 
From  commercial  ventures — Tortious  interference  with  business — 
Chance  to  compete  for  prize —  Uncertain  mitigation  of  breach  of 
marriage  promise  —  Failure  to  provide  sinMng  fund. 

Damages  must  he  certain,  hoth  in  their  nature,  a/nd  in  respect 
to  the  cause  from  loTiich  they  proceed.  Judge  Selden  said  that 
the  requisite  that  the  damages  must  not  be  remote,  but  the 
proximate  consequence,  is  in  part  an  element  of  the  required 
certainty.^  In  the  preceding  pages  the  requirement  that  the 
damages  be  the  natural  and  proximate  result  of  the  act  com- 
plained of  has  been  discussed ;  but  mainly  with  reference  to 
the  consequences  as  a  whole.  Kow  it  remains  to  consider  the 
certainty  necessary  not  only  in  regard  to  the  consequences  as  a 
whole  but  also  in  detail.  A  fatal  uncertainty  may  infect  a  case 
where  an  injury  is  easily  provable,  but  the  alleged  responsible 
cause  cannot  be  sufficiently  established  as  to  the  whole  or  some 
part  of  that  injury.  So  it  may  exist  where  a  known  and  prov- 
able wrong  or  violation  of  contract  appears,  but  the  alleged 
loss  or  injury  as  a  result  of  it  cannot  be  certainly  shown.  Many 
of  the  illustrations  abead}^  given  apply  to  the  first,  as  where 
the  injury  is  not  the  natural  or  proximate  result  of  the  act  com- 
plained of ;  the  relation  of  cause  and  effect  does  not  exist  be- 
tween the  alleged  cause  and  the  alleged  injury.  This  uncer- 
tainty may  be  further  illustrated  by  the  case  of  a  plaintiff  who 
complained  that  the  defendant  had  taken  his  flat  from  his  ferry, 
and  that  being  obliged  to  go  in  search  of  it  in  order  to  cross  the 
river,  he  left  his  horses  attached  to  a  wagon  standing  on  the 
bank,  and  while  he  was  gone,  the  horses  ran  into  the  river  and 
were  drowned.^  The  loss  of  the  horses  and  wagon  was  not  a 
natural  consequence  of  the  taldng  of  the  flat  which  the  defend- 
ant could  foresee  as  a  probable  result  of  his  wrongful  act ;  there 
was  a  more  immediate  cause  in  the  negligence  of  the  owner ; 

1  Griffin  v.  Colver,  16  N.  Y.  supra.     ^  Gordon  v.  Butts,  3  N.  J.  L.  314. 


KEQTJIEED   CERTAINTY   OF   DAilAGES.  95 

and  after  the  event,  it  cannot  be  ascribed  Avith  tlie  requisite 
certainty  to  the  defendant's  act,  although  it  was  the  beginning 
of  the  series  of  facts  which  cuhninated  in  that  loss.^ 

A  grantee  of  land  cannot  recover  as  damages  for  the  breach 
of  the  grantor's  covenant  against  incumbrances  consisting  of 
an  inchoate  right  of  dower  in  the  premises,  a  sum  paid  by  him- 
self to  an  auctioneer  for  selling  them  to  a  person  who  refused 
to  complete  the  purchase  on  discovering  the  incumbrance.'^ 

In  an  action  for  the  wrongful  revocation  of  an  agreement  to 
submit  a  controversy  to  arbitration,  the  plaintiff  is  not  entitled 
to  recover  damages  for  the  trouble  and  expense  incurred  in 
making  the  agreement ;  but  he  can  recover  for  his  loss  of  time, 
and  for  his  trouble  and  necessary  expenses  in  preparing  for  a 
hearing,  such  as  employing  counsel,  taking  depositions,  paying 
witnesses  and  arbitrators,  so  far  as  such  preparations  are  not 
available  for  a  subsequent  trial  in  court.^ 

A  defendant  chartered  the  plaintiff's  vessel  from  Liverpool  to 
Puerto  Cabello,  at  a  stipulated  freight ;  a  clause  was  afterwards 
added  to  the  charter-party  allowing  the  defendant  to  send  on  a 
part  of  the  cargo  to  Maracaibo,  with  a  proviso,  that  any  ex- 
pense incurred  by  so  doing  should  be  borne  by  the  charterer. 
Under  pretense  of  an  attempt  by  the  master  to  evade  the  cus- 
toms on  the  part  so  shipped,  the  custom-house  authorities  at 
Puerto  Cabello  \vrongf  ully  imposed  a  fine  of  $500  on  the  master 
and  detained  the  vessel  for  several  months ;  but  would  have 
allowed  her  to  depart  if  the  fine  had  been  paid,  which  the 
master  had  not  the  means  to  pay,  and  did  not.  The  govern- 
ment agreed  afterwards  to  pay  the  master  $5,000  for  the  wrong- 
ful detention,  but  did  not.  It  was  held  by  the  court  of  ex- 
chequer that  the  owner  of  the  vessel  could  recover  from  the 
charterer  neither  the  loss  sustained  by  the  detention  at  Puerto 

'See  Walker  v.  Goe,   3  H.  &  N,  Hopkins,  3  Bulst.  333;    Walker  v. 

395;  S.  C.  4  id.  350;  Dubuque  Asso.  Moore,  10  B.  &  C.  416;  Haydon  v, 

V.  Dubuque,  30  Iowa,  176;  Hofnagle  Cabot,  17  Mass.  169;  Green  v.  Mann, 

V.  N.  Y.  etc.  R.  R.  55  N.  Y.  ^08;  11    lU.    613;    Hargous    v.   Ablon,   3 

Davis  V.    Fish,    1    G.    Greene,   406;  Denio,  406;  Bray  ton  v.  Chase,  3  Wis. 

Lewis  V.  Lee,  15  Ind.  499;  Ashley  v.  45G;  Chattertou  v.  Fox,  5  Duer.  64. 

Harrison,  1  Esp.  49;  Barber  v.  Les-  '  Harrington  v.  Murphy,  109  Mass. 

iter,  7  C.  B.  N.  S.   175;  Collins  v.  399. 

Cave,  4  H.  &  N.  335;  Evcrard  v.  ^p^^j^^  Harris,  113  Mass.  114. 


96  COMPENSATION. 

Cabello,  nor  the  expense  incurred  in  repairing  the  damage  to 
the  ship  in  consequence  of  such  detention,  nor  for  the  costs  of 
legal  proceedings  taken'  by  him  in  respect  to  the  ship,  nor  for 
the  fine.^ 

A    LIABILITY   FOE   THE   PEINCIPAL    LOSS    EXTENDS   TO   DETAILS  AND 

INCIDENTS. —  Where  the  alleged  wrong  or  breach  of  contract  is 
shown  with  the  requisite  certainty  to  be  the  cause  of  the  injury 
in  question,  it  is  also  to  be  deemed  the  cause  of  aU  its  concomi- 
tant and  incidental  details,  which  are  constituent  parts  of  the 
injury,  including  necessary  and  judicious  expenditures  made  to 
stay  or  efface  the  wrong  or  limit  the  injury.^  A  riparian  owner 
brought  an  action  for  polluting  the  waters  of  a  stream  running 
through  his  farm.  He  was  held  entitled  to  recover  for  loss  of 
an  opportunity  of  renting  his  grist  mill,  the  diminution  in  the 
rental  value  of  his  farm,  and  the  inconveniences  he  may  have 
been  put  to  in  the  use  of  the  same,  resulting  directly  from  the 
conduct  of  the  defendant.^  A  plaintiff's  house  was  injured  by 
the  partial  falling  in  of  the  partition  waU  between  it  and  the 
defendant's  house ;  and  this  was  caused  by  digging  too  near  the 
wall,  for  the  purpose  of  deepening  the  cellar  under  the  latter. 
!N'o  notice  was  given  by  the  defendant  of  his  intention  to  deepen 
his  cellar,  and  evidence  was  offered  to  show  that  the  excavation 
was  done  in  a  careless  and  negligent  manner ;  and  also  to  show 
that  the  business  of  the  plaintiff,  who  kept  an  ice-cream  saloon, " 
and  made  cakes  and  other  articles  in  that  line,  was  interrupted 
for  several  days.  The  court  held  that  the  plaintiff  was  entitled 
to  such  damages  as  would  be  sufficient  to  reinstate  the  wall  and 
the  house  in  as  good  condition  as  they  were  prior  to  the  injury, 
and  to  compensate  him  for  the  loss  consequent  upon  the  inter- 
ruption of  his  business ;  and  to  show  the  latter,  he  might  prove 
the  usual  profits  of  his  business  prior  to  the  injmy.'* 

1  Sully  V.  Duranly,  33  L.  J.  N.  S.  mons  v.  Brown,  5  R.  I.  299;  Allison 
319.  V.  Chandler,  11  Mich,  543. 

2  McDaniel  v.  Crabtree,  21  Ark.  *Walrath  v.  Eedfield,  11  Barb.  368, 
431 ;  Smith  v.  Condry ,  1  How.  U.  S.  was  an  action  on  the  case  for  dam- 
35;  Loker  V.  Damen,  17  Pick.  288.  ages  to  the  plaintiffs'  saw-mill  and 

s  Gladf elter  v.  Walker,  40  Md.  3.         other  property,    occasioned  by  the 

^  Brown  v.   Werner,   40    Md.    15;      act  of  the  defendant  in  constructing 

White  V.  Moseley,  8  Pick,  356;  Sim-     a  dam  and  dike  below  such  mill,  and 


EEQUTRED    CEETAIN'TY    OF    DAISIAGES. 


97 


OxLY  THE  ITEMS  WHICH  ARE  cEETAiisT,  KEcovEE.vBLE. —  The  char- 
terer of  a  vessel,  who  was  subjected  to  expense  in  getting  her 
off  from  over  a  gas  pipe,  which  was  an  unlawful  obstruction  to 
the  navigation  of  a  river,  and  upon  which  she  caught  in  passing 
along  the  river,  while  navigating  with  due  care,  may  maintain 
an  action  against  those  who  laid  the  gas  pipe  to  recover  for 
such  expense,  but  not  for  any  delay  in  his  business  or  other 
consequential  damages.^ 

Where,  on  a  bill  in  chancery,  the  defendant  was  enjoined  from 
removing  his  negroes,  and  upon  an  order  of  seizure  they  are 
taken  out  of  his  possession,  and  a  decree  subsequently  rendered 
in  his  favor,  it  was  held  his  damage^,  would,  ordinarily,  be  what 
their  labor  would  have  been  worth  had  thev  continued  in  his 


thereby  causing  the  water  to  flow 
back  upon  the  mill,  and  rendering  it 
incapable  of  being  used.  The  plaint- 
iffs were  held  only  entitled  to  re- 
cover the  value  of  the  use  of  their 
mill  during  the  time  they  were  nec- 
essarily deprived  of  the  use  of  it, 
and  the  amount  which  it  was  per- 
manently diminished  in  value  by 
the  erection  of  the  dam.  They  can- 
not recover  the  amount  of  a  loss 
upon  saw  logs,  on  hand  at  the  time 
of  the  injury,  sustained  either  in 
consequence  of  a  deterioration  in 
their  value,  or  by  a  depression  in  the 
market  price.  The  damages  in 
respect  to  the  logs  were  too  specvda- 
tive,  uncertain,  remote  and  contin- 
gent, to  be  allowed,  even  upon  proof 
that  the  plaintiffs  could  not,  by  the 
use  of  ordinary  diligence,  have  pro- 
cured the  logs,  to  be  sawed,  else- 
where, and  could  not  have  disposed 
of  them  before  sawing.  In  actions 
of  tort,  where  there  has  been  no 
wilful  injury,  the  plaintiff  can  only 
recover  the  damages  necessarily  re- 
sulting from  the  act  complained  of, 
and  he  cannot  conduct  himself  in 
such  a  manner  as  to  make  the  dam- 
ages unnecessarily  burdensome. 
See  S.  C.  18  N.  Y.  457. 
Vol.  1  —  7 


A  more  reasonable  rule  and  one 
more  in  accord  with  the  principles 
of  holding  a  wi-ongdoer  liable  for 
such  consequences  as  would  natu- 
rally and  in  the  usual  course  of 
things,  result  from  his  conduct,  was 
laid  down  in  McTavish  v.  Carroll, 
17  Md.  1,  which  was  an  action  for 
damages  for  obstructing  a  right  of 
way  for  repairing  a  mill-race;  the 
declaration  alleged  that  the  obstruc- 
tion prevented  the  repair  of  the 
race,  whereby  the  mill  became  idle 
and  could  not  be  worked,  and  the 
plaintiff  lost  the  custom  and  trade 
thereof,  ' '  and  the  use  of  the  same 
for  grinding  his  ow^n  grain,  and  w^as, 
therefore,  at  great  expense,  obliged 
to  carry  it  to  other  mills."  Held, 
that  under  this  declaration,  eTOlence 
that  the  plaintiff  was  owner  of  a 
lai'ge  body  of  land  around  his  miU, 
and  was  accustomed  to  grind  his 
grain  raised  thereon  at  this  mill,  for 
his  cattle,  horses,  hands  and  family, 
and  in  consequence  of  its  stoppage, 
he  had  been  compelled  to  carry  his 
grain  to  another  miU,  at  a  greater 
distance,  is  admissible.  Hinckley 
V.  Beckwith,  13  Wis.  31. 

'  Benson  v.  Walden,  etc.  Gas  L. 
Co.  6  AUen,  149. 


98  COMPENSATION. 

possession.  But  he  would  also  be  entitled  to  damages  for  any 
loss  that  was  the  direct,  proximate  and  natural  consequence  of 
the  removal  of  the  negroes  out  of  his  possession.  But  in  such 
case  the  damages  must  not  be  remote  and  speculative,  involving 
inquiries  that  are  collateral  to  the  consideration  of  the  wrongful 
act.  And  so  he  could  not  recover  as  damages,  his  counsel  fees 
incurred  in  defending  the  suit ;  nor  expenses  incurred  in  em- 
ploying an  agent  to  attend  to  his  other  business,  whilst  he  was 
engaged  in  tlie  defense  of  the  suit ;  nor  what  would,  or  might 
have  been,  the  profits  of  his  business  had  not  his  possession,  of 
the  negi'oes  in  suit  been  interrupted.^ 

!  The  plaintiff's  oxen  were  stolen  in  Yermont  and  taken  to  the 
defendant,  and  being  found  in  his  possession  in  the  state  of  New 
York,  were  demanded  and  refused.  Tlie  plaintiff  then  resorted 
to  legal  process  to  regain  possession,  and  succeeded,  but  incurred 
expense  therein.  He  was  held  not  entitled  to  recover  such  ex- 
pense, as  part  of  his  damages  for  the  conversion,  in  a  subsequent 
action.^  These  expenses  were  not  rejected  because  a  remote  or 
uncertain  incident  of  the  wrong,  but  because  they  were  costs  of 
a  judicial  proceeding  in  which  such  allowable  expenses  are  col- 
lectible, and  if  not  thus  compensated,  cannot  be  recovered.  The 
expense  of  regaining  property  tortiously  taken  is  a  part  of  the 
injury  and  recoverable.^  Where  goods  wrongfully  seized  are 
taken  from  the  wrongdoer  by  another,  the  owner  of  the  goods 
may,  in  an  action  against  tlie  former,  recover  the  amount  paid 
the  other  wrongdoer  to  get  back  the  goods.^ 

In  an  action  upon  an  attachment  bond,  the  rule  restricting  the 
recovery  to  the  natural  and  proximate  damages  will  exclude  any 
claim  of  damages  for  injuries  to  credit  and  business.^  But  where 
a  party  took  a  lease  of  a  ferry,  and  covenanted  to  maintain  and 
keep  the  same  in  good  order,  and  instead  of  doing  so  diverted 
travelers,  from  the  usual  landing  to  another  landing  owned  by 
himself,  by  means  whereof  a  tavern-stand  belonging  to  the 
plaintiff,  situate  on  the  first  landing,  was  so  reduced  in  business 
as  to  become  tenantless,  it  was  held,  in  an  action  by  the  land- 

'McDaniels  v.  Crabtree,  21  Ark.  ^Bennett  v.  Lockwood,  20  Wend, 
431.  233. 

2  Harris  v.  Eldred,  42  Vt.  39.  ■*  Keene  v.  Dilke,  4  Exch.  388. 

*  State  V.  Thomas,  19  Mo.  613. 


REQUIRED    CERTAINTY    OF   DAMAGES.  99 

lord,  for  breach  of  the  contract,  that  he  might  assign,  and  was 
entitled  to  recover,  as  damages,  the  loss  of  rent  on  the  tavern- 
stand.^  Where  a  negro  was  hired  to  make  a  crop,  and  was 
taken  away  by  the  owner  in  the  middle  of  the  year,  whereby 
the  crop  was  entirely  lost,  it  was  held  that  the  proper  measm-e 
of  damages  was  the  hire  of  the  negro,  paid  in  advance,  the  rent 
of  the  land,  and  the  expenses  incurred  for  the  pm'pose  of  mak- 
ing the  crop.-* 

Where  the  injury  to  he  recovered  for  consists  of  several  items 
variously  related  consequentially  to  the  aliened  cause,  the  right  to 
each  must  he  decided  iijpon  the  same  princijples  as  where  only  one 
inseparable  injurious  effect  is  in  question.  It  may  happen  that 
such  items  are  successive,  and  the  first  may  in  some  sort  operate 
as  cause  in  respect  to  later  effects.  When  this  is  the  case,  a  re- 
covery for  items  subsequent  to  the  first  ^\^S\.  depend  on  whether 
the  act  complained  of  is  the  efficient  cause  of  the  entire  dam- 
age as  re]iresented  by  all  the  items  claimed,  and  whether  they 
are  consequences  which  ought  reasonabh"  to  have  been  contem- 
plated to  ensue,  or  in  case  of  contract,  whether  they  may  fairly 
be  supposed  to  have  been  within  the  contemplation  of  the 
parties  at  the  time  of  contracting.  This  is  well  illustrated  by 
an  English  case.  The  defendant  contracted  to  dehver  to  the 
plaintiff,  a  farmer,  a  threshing  machine,  within  three  weeks.  It 
was  the  plaintiff's  practice,  known  to  the  defendant,  to  thresh 
his  wheat  in  the  field,  and  send  it  thence  direct  to  market.  At 
the  end  of  three  weeks,  plaintiff's  wheat  was  ready,  in  the  field, 
for  threshing ;  and,  on  the  plaintiff  remonstrating  at  the  delay 
in  the  delivery  of  the  machine,  the  defendant  several  times  as- 
sured him  it  should  be  sent  forthwith.  The  plaintiff  having 
unsuccessfully  tried  to  hire  another  machine,  was  obliged  to 
carry  home  and  stack  the  wheat ;  which,  while  so  stacked,  was 
damao;ed  by  rain.  The  machine  was  afterwards  delivered  to 
the  plaintiff,  who  paid  the  defendant  the  contract  price.  The 
wheat  was  then  threshed  ;  and  it  was  found  necessary,  owing  to 
its  deterioration  by  the  rain,  to  Idln-dry  it.  When  dried  and 
sent  to  market,  it  sold  for  a  less  price  than  it  would  have  fetched 
had  it  been  threshed  at  the  time  fixed  by  the  contract  for  the 
dehvery  of  the  machine,  and  then  sold,  the  market  price  of 

'  Dewint  v.  WHtse,  9  Wend.  325.      «Hobbs  v.  Davis,  30  Ga.  428. 


100  COMPENSATION. 

wheat  liaving  meanwhile  fallen.  It  was  held  in  an  action  for 
the  non-delivery  of  the  machine,  that  the  plaintiff  was  entitled 
to  recover  for  the  expense  of  stacking  the  wheat,  the  loss  from 
the  deterioration  by  the  rain,  and  the  expense  of  Idln-drying  it, 
but  not  the  loss  by  the  fall  in  the  market,  the  latter  being  too 
uncertain  to  have  been  contemplated,  and  not  the  natural  result 
of  the  breach.^  There  is  much  reason  for  hokhng  that  the  lat- 
ter loss  was  also  recoverable.^ 

Some  other  illustrative  cases  will  also  be  given.  In  an  action 
for  negligent  driving,  whereby  the  plaintiff's  horse  was  injured, 
it  appeared  that  the  li^)rse  was  sent  to  a  farrier  for  six  weeks  for 
the  purpose  of  being  cured,  and  that  at  the  end  of  that  time  it 
was  ascertained  that  the  horse  was  damaged  to  the  extent  of 
20^.  It  was  held  that  the  plaintiff  was  entitled  to  recover  for 
the  keep  of  the  horse  at  the  farrier's,  the  amount  of  the  far- 
rier's charges,  and  the  difference  in  value  between  the  horse  at 
the  time  of  the  accident  and  at  the  end  of  the  six  weeks,  but 
not  for  the  hire  of  another  horse  during  the  six  weeks.^  Had 
a  clahn  been  made  for  the  loss  of  the  use  of  the  injured  horse 
during  his  treatment  at  the  farrier's,  it  would  have  been  a  proper 
item  of  damages.^  A  tradesman  took  a  ticket  to  go  by  railway 
from  London  to  IlaU.  On  arriving  at  an  intermediate  station, 
he  found  no  train  ready  to  take  him  to  Hall  the  same  night,  as 
it  should  have  been  according  to  the  published  time-bill.  He 
slept  at  that  place,  and  in  the  morning  paid  1*.  4,d.  fare  to  HaU. 
In  consequence  of  the  delay,  he  failed  to  keep  appointments 
with  his  customers,  and  was  detained  for  many  days.  The  lat- 
ter was  not  brought  within  the  contemplation  of  the  parties. 
The  com-t  told  the  jury  that  the  plaintiff  would  have  been  en- 
titled to  charge  the  company  with  the  expenses  of  getting  to 

iSmeed  v.  Foord,  1  E.  &  E.   602;  ^  Hughes  v.  Quentin,  7  C.  &  P.  703; 

but  see  Prosser  v.  Jones,  41  Iowa,  Clare  v.  Maynard,  7  C.  &  P.  741. 

674.  ^  Albert  v.  The  Bleecker  St.  etc.  R. 

"-  Ward  V.  N.  Y.  Cent.  R.  R.  Co.  47  R.  Co.  2  Day,  303;  Bennett  v.  Lock- 

N.  Y.  29;  Sturgess  v.  Bissell,  46  N.  wood,   20  Wend.    223;    Walrath  v. 

Y.  462;  Scott  v.  Boston,  etc.  Co.  106  Redfield,    11    Barb.    368;    GiUett  v. 

Mass.  468;  Sisson  v.  Cleveland,  etc.  West.  R.  R.  Corp.  8  Allen,  560;  The 

R.  R.  Co.  14  Mich.  489;  Collard  v.  S.  Glaucus,  1  Lowell,  366;  Sweeny  v. 

E.  R'y  Co.  7  H.  &  N.  79;  Weston  v.  Pt.  Burwell  Harbor  Co.  17  Upp.  Can. 

Grand  T.  R'y  Co.  54  Me.  376;  Peet  v.  C.  P.  574, 
Chicago,  etc.  R.  R.  Co.  20  Wis.  594. 


KEQUIKED    CEKTAIXTY    OF    DAMAGES.  101 

Hall,  but  he  had  no  right  to  cast  upon  the  company  the  remote 
consequences  of  remaining  the  night  at  the  intermediate  place. 
He  was  entitled  to  the  fare  thence  to  Hall,  and  perhaps  the  2s. 
for  his  bed  and  refreshments.  A  motion  for  new  trial,  on  the 
ground  of  misdirection,  was  refused.  Pollock,  C.  B.,  said :  "  In 
actions  for  breach  of  contract,  the  damages  must  be  such  as  are 
capable  of  being  appreciated  or  estimated.  Mr.  "Wilde  was  in- 
vited at  the  trial  to  state  what  were  the  damages  to  which  the 
plaintiff  was  entitled.  He  said,  general  damages.  The  plaint- 
iff is  entitled  to  nominal  damages,  at  all  events,  and  such  other 
damages  of  a  pecuniary  kind  as  he  may  have  really  sustained 
as  a  direct  consequence  of  the  breach  of  the  contract.  Each 
case  Of  this  description  must  be  decided  with  reference  to  the 
circumstances  peculiar  to  it ;  but  it  may  be  laid  down  as  a  rule, 
that,  generally,  in  actions  upon  contracts  no  damages  can  be 
given  wliich  cannot  be  stated  specifically,  and  that  the  plaintiff 
is  entitled  to  recover  whatever  damages  naturally  result  from 
the  breach  of  contract,  but  not  damages  for  the  disappointment 
of  mind  occasioned  by  the  breach  of  contract.^ 

A  subsequent  case,  in  England,  was  decided  by  the  queen's 
bench,  in  1875,  on  this  state  of  facts :  The  plaintiff  and  his  | 
wife,  and  two  children,  of  five  and  seven  years  old,  respectively,  ^ 
took  tickets  on  the  defendant's  railway,  from  W  to  H,  by  the 
midnight  train.  They  got  into  the  train,  but  it  did  not  go  to 
H,  but  along  another  branch  to  E,  where  the  party  were  com- 
pelled to  get  out.  It  being  so  late  at  night,  the  plaintiff  was 
unable  to  get  a  conveyance,  or  accommodation  at  an  inn.  And 
the  party  walked  to  the  plaintiff's  house,  a  distance  of  between 
four  and  five  miles,  where  they  arrived  at  about  three  in  the 
morning.  It  was  a  drizzling  night,  and  the  wife  caught  cold, 
and  was  laid  up  for  some  time,  and  unable  to  assist  her  husband 
in  his  business  as  before,  and  expenses  were  incurred  for  medical 
attendance.^  Three  items  of  loss  and  injury  came  under  consid- 
eration :  first,  the  inconvenience,  as  it  was  called,  of  ha\4ng  to 
walk  home;  second,  the  expense  of  the  wife's  sickness;  and 
third,  the  loss  of  her  services.     The  last  two  items,  being  coinci- 

'  Hamlin  v.  Great  N.  R'y  Co.  1  H.         ^Hobbs  v.  The  London,  etc.  R'y 
&  N.  408;  see  Denton  v.  Great  N.  Ry      Co.  L.  R.  10  Q.  B.  111. 
Co.  8  Eng.  C.  L.  85. 


102  COMPENSATION. 

deut  in  time  and  relation  to  the  defendant's  breach  of  contract, 
were  considered  together.  Only  the  first  was  allowed.  It  was 
remarked  that  the  plaintiifs  did  their  best  to  diminish  the  in- 
convenience to  themselves,  and  they  had  no  alternative  but  to 
wallc ;  that  it  was  not  to  be  doubted  that  the  inconvenience  was 
the  immediate  and  necessary  consequence  of  the  breach  of  the 
defendant's  contract  to  convey  them  to  H.  Cockburn,  C.  J., 
said :  "  I  am  at  a  loss  to  see  why  that  inconvenience  should  not 
be  compensated  by  damages  in  such  an  action  as  this.  .  .  . 
If  the  jury  are  satisfied  that,  in  the  particular  instance,  personal 
inconvenience,  or  suffering,  has  been  occasioned,  and  that  it  has 
been  occasioned  as  the  immediate  effect  of  the  breach  of  con- 
tract, I  can  see  no  reasonable  principle  why  it  should  not  be 
compensated  for."  And  again  :  "  So  far  as  the  inconvenience 
of  the  walk  is  concerned,  that  must  be  taken  to  be  reasonably 
within  the  contemplation  of  the  parties ;  because,  if  a  carrier  en- 
gages to  put  a  pereon  down  at  a  given  place,  and  does  not  put  him 
down  there,  but  puts  him  down  somewhere  else,  it  must  be  in  the 
contemplation  of  everybody,  that  the  passenger  put  down  at  the 
wrong  place  must  get  to  the  place  of  his  destination  somehow  or 
other.  If  there  are  means  of  conveyance  for  getting  there,  he  may 
take  those  means  and  make  the  company  responsible  for  the  ex- 
pense ;  but,  if  there  are  no  means,  I  take  it  to  be  law,  that  the  car- 
rier must  compensate  him  for  the  personal  inconvenience  which 
the  absence  of  those  means  has  necessitated.  That^ows  out  of  the 
breach  of  contract  so  immediately  that  the  damage  must  be  ad- 
mitted to  be  a  fair  subject-matter  of  damages.  But,  in  this  case, 
the  wife's  cold  and  its  consequences  cannot  stand  upon  the 
same  footing  as  the  personal  inconvenience  arising  from  the  ad- 
ditional distance  which  the  plaintiffs  had  to  go.  It  is  an  effect 
of  the  breach  of  contract,  in  a  certain  sense,  but  removed  one 
stage ;  it  is  not  the  primary,  but  the  secondary,  consequence  of 
it."  The  objection  to  what  is  termed  the  "secondary  conse- 
quence "  is,  that  it  is  not  a  consequence  so  certain  to  occur  as  to 
be  among  those  to  be  anticipated  from  such  a  breach,  it  happen- 
ing from  other  than  the  usual  state  of  the  weather ;  but  it 
was  not  any  more  a  secondary  consequence  than  is  the  burning 
of  a  second  building  by  a  continuous  fire,  or  the  injury  to  the 
grain  by  rain,  in  Smeed  v.  Foord.     It  is  said  in  the  same  opin- 


REQUIKED    CERTAIXTY    OF    DAMAGES.  103 

ion,  already  quoted  from,  that  "  the  nearest  approach  to  any- 
thing hke  a  fLxed  rule  is  this:  That  to  entitle  a  person  to 
damages  by  reason  of  a  breach  of  contract,  the  injury,  for 
which  compensation  is  asked,  should  be  one  that  may  fairly 
be  taken  to  have  been  contemplated  by  the  parties  as  the  possible 
result  of  the  breach  of  contract.  Therefore  you  must  have 
something  immediately  flowing  out  of  the  breach  of  contract 
complained  of,  something  immediately  connected  with  it,  and 
not  merely  connected  with  it  through  a  series  of  causes  interven- 
ing between  the  immediate  consequence  of  the  breach  of  con- 
tract and  the  damage  or  injury  complained  of.  To  illustrate 
that,  I  cannot  take  a  better  case  than  the  one  now  before 
us  :  Suppose  that  a  passenger  is  put  out  at  a  wrong  station,  on 
a  wet  night,  and  obliged  to  walk  a  considerable  distance  in  the 
rain,  catching  a  violent  cold,  which  ends  in  a  fever;  and  the 
passenger  is  laid  up  for  a  couple  of  months,  and  loses,  thi'ough 
this  illness,  the  offer  of  an  employment  which  would  have 
brought  him  a  handsome  salary.  jSTo  one,  I  tliink,  ^vho  under- 
stood the  law,  would  say,  that  the  loss  so  occasioned  is  so  con- 
nected with  the  breach  of  contract  as  that  the  carrier  breakino* 
the  contract  could  be  held  liable."  True ;  tliere  the  sickness 
would  be  the  cause  of  an  accidental  loss,  but,  in  the  case  under 
discussion,  the  question  was  not  of  such  a  loss.  On  the  contrary, 
it  was  the  expense  and  loss  of  time  incident  to  the  sickness 
itself.  "Was  not  that  "a  result  of  the  breach,"  which  was 
natm-al  and  proximate,  and  to  be  contemplated  under  the  other 
circumstances  of  the  breach  for  which  the  defendant  was  held 
responsible  ?  ^ 

'Blackburn,  J.:  "It  is  a  contract  been  supplied,  and  that  which  you 
by  which  the  railway  company  had  have  to  pay  for,  if  it  be  equally 
undertaken  to  carry  four  persons  to  good;  or,  if  the  thing  ig  not  obtain- 
Hampton  Court,  and  in  fact  that  able,  the  damages  would  be  the  dif- 
conti-act  was  broken  when  they  ference  between  the  thing  whicli 
landed  the  passengers  at  Esher,  in-  you  ought  to  have  had  and  the  best 
stead  of  Hampton  Court.  The  con-  substitute  you  can  get  upon  the 
tract  was  to  supply  a  conveyance  to  occasion  for  the  pui-pose,  .  .  . 
Hampton  Court,  and  it  was  not  sup-  "When  he  is  not  able  to  get  a  con- 
plied.  Where  there  is  a  contract  to  veyance  at  all,  but  has  to  make  the 
supply  a  thing  and  it  is  not  supplied,  journey  on  foot,  I  do  not  see  how 
the  damaged  are  the  difference  be-  you  can  have  a  better  rule  than  that 
twcen  that  which  ouglit  to    have  which  the  learned  judge  gave  to  the 


104 


COMPENSATION. 


Recovery  may  be  had  fok  successive  consequences. —  In  an 
action  under  the  code,  it  appeared  that  the  defendant  dehvered 
to  the  plaintiff  tickets,  about  the  1st  of  March,  1852,  for  trans- 
portation from  Kew  York  to  San  Francisco ;  one  entitled  hira  to 
a  passage  to  Graytown,  at  the  mouth  of  Mcaragua  river,  in  speci- 
fied ship,  which  was  to  sail  on  the  5th  of  that  month ;  another 
entitled  him  to  a  passage  up  that  river,  and  through  the  lake  of 
that  name,  to  San  Juan  del  Sur,  on  the  Pacific  ocean ;  and  the 
other  from  the  latter  place  to  his  destination,  on  a  steamer  named, 
which  was  advertised  to  leave  about  fifteen  days  after  the 
plaintiff  would  arrive  at  the  starting  port,  according  to  the 
usual  course  of  conveyances.     The  plaintiff  was  carried  on  his 


jury  here,  namely,  that  the  jury 
were  to  see  what  was  the  inconveni- 
ence to  the  plaintiffs  in  having  to 
walk,  as  they  could  not  get  a  car- 
riage." As  to  damage  being  recov- 
erable for  the  illness  of  the  wife,  he 
said:  "I  think  they  are  not,  because 
they  are  too  remote.  On  the  princi- 
ple of  what  is  too  remote,  it  is  clear 
enough  that  a  person  is  to  recover 
in  the  case  of  a  breach  of  contract 
the  damages  directly  proceeding 
from  that  breach  of  contract  and 
not  too  remotely.  Although  Lord 
Bacon  had,  long  ago,  referred  to 
this  question  of  remoteness,  it  has 
been  left  in  very  great  vagueness  as 
to  what  constitutes  the  limitation; 
and,  therefore,  I  agree  with  what 
my  lord  has  said  to-day,  that  you 
make  it  a  httle  more  definite  by  say- 
ing such  damages  are  recoverable  as 
a  man,  when  making  a  contract, 
would  contemplate  would  flow  from 
a  breach  of  it.  For  my  own  part,  I 
do  not  feel  that  I  can  go  further 
than  that.  It  is  a  vague  rule,  and 
asBramweU,  B.,  said,  it  is  something 
like  having  to  draw  a  line  between 
night  and  day;  there  is  a  great  du- 
ration of  twilight  when  it  is  neither 
night  nor  day;  but  on  the  question 
now  before  the  court,  though  you 
cannot  draw  the  precise  line,  you 


can  say  on  which  side  the  line  the 
case  is.  MeUor,  J. :  "I  quite  agree 
.  .  .  that  for  the  mei"e  inconveni- 
ence, such  as  annoyance  and  loss  of 
temper  or  vexation,  or  for  being  dis- 
appointed in  a  particular  thing 
which  you  have  set  your  mind  upon, 
without  real  physical  inconvenience 
resulting,  you  cannot  have  dam- 
ages. That  is  purely  sentimental, 
and  not  a  case  where  the  word  in- 
convenience, as  I  here  use  it,  would 
apply.  But  I  must  say,  if  it  is  a 
fact  that  you  arrived  at  a  place 
where  you  did  not  intend  to  go  to, 
where  you  are  placed  by  reason  of 
the  breach  of  contract  of  the  car- 
riers, at  a  considerable  distance  from 
your  destination,  the  case  may  be 
otherwise.  It  is  admitted  that  if 
there  be  a  carriage  you  may  hire  it 
and  ride  home,  and  charge  the  ex- 
pense to  the  defendant.  The  reason 
why  you  may  hire  a  carriage  and 
charge  the  expense  to  the  company 
is,  with  a  view  simply  of  mitigating 
the  inconvenience  to  which  you 
would  otherwise  be  subject:  so  that 
where  the  inconvenience  is  real 
and  substantial,  arising  from  being 
obliged  to  walk  home,  I  cannot  see 
why  that  should  not  be  capable  of 
being  assessed  as  damages  in  re- 
spect of  inconvenience." 


KEQUIIJED    CEKTALNTY    OF    DA:SIAGES.  105 

first  ticket,  and  arrived  at  Graytowii  on  the  15th  of  March, 
where  he  was  detained  eleven  days.  He  then  started  for  San 
Juan  del  Sm\  He  arrived  at  a  place  on  the  way  on  the  31st  of 
March,  when  he  was  taken  sick.  There  he  received  news  that 
the  steamer  on  which  he  was  entitled  to  take  passage  under  his 
third  ticket,  was  lost  on  the  2Tth  of  the  previous  month,  but 
the  fact  was  not  known  to  the  defendant  at  time  of  selling  the 
tickets,  nor  until  about  the  20th  of  April.  The  plaintiff  arrived 
at  San  Juan  del  Sur  on  the  4th  of  April,  and  remained  there 
untd  the  9th  of  May,  endeavoring,  but  unsuccessfully,  to  pro- 
cure a  passage  to  San  Francisco.  He  then  returned  to  Xew 
York.  He  remained  sick  until  long  after  he  returned  home, 
with  a  fever  peculiar  to  the  climate  of  ISTicaragua.  It  was  held 
that  the  time  the  plaintiff  lost  by  reason  of  his  detention  on  the 
isthmus ;  his  expenses  there,  and  of  his  return  to  J^ew  York ; 
the  tune  he  lost  by  reason  of  his  sickness,  after  he  returned 
home ;  and  the  expenses  of  such  sickness,  so  far  as  the  same 
were  occasioned  by  the  defendant's  negligence  and  breach  of 
duty,  as  well  as  the  amount  originally  paid  for  his  passage,  were 
legitimate  and  lawful  damages  which  the  plaintiff  was  entitled 
to  recover.^ 

The  damages  which  are  recoverable  for  breach  of  contract 
are  hmited  to  the  direct  and  immediate  consequences ;  but  the 
right  to  indemnity  is  not  satisfied  by  compensation  for  the  first 
item  of  loss,  if  there  are  others  so  identified  with  the  first  that 
the  injmy  as  a  whole  naturally  comprehends  aU,  and  they,  to- 
gether, constitute  the  immediate  consequence.  A  party  whose 
breach  of  contract  leaves  the  other  party  in  such  a  situation 
that  sickness  is  its  natural,  immediate  and  probable  consequence, 
causes,  also,  by  the  same  act,  the  direct  pecuniary  losses  which 
are  its  usual  and  natural  concomitants,  as  loss  of  time  and  the 
expense  of  medical  and  other  attendance.  If,  by  reason  of 
the  sickness,  some  extraordinary  or  unusual  loss  occm^s  for  "want 
of  abilit}^  on  his  part  to  attend  to  his  affau's,  it  is  a  loss  which 
cannot  be  considered  as  having  entered  into  the  contemplation 

'Williams  v.  Vanderbilt,  28  N.  Y.  Co.  1  Cal.  353:  Pearson  v.  Duane,  4 

217;   Heirn  v.  McCaughar,  32  Miss.  Wall.  605;  TheZenobia,  1  Abb.  Adm. 

17;  Porter  v.  Steamboat  N.  E.  17  80;  The  Camulian,  1  Brown  Adm.  11. 
Mo.  290;  Younge  v.  Pacific  M.  etc. 


106  COMPENSATION. 

of  the  parties ;  and  tlie  same  must  be  the  conclusion,  if  the  sick- 
ness were  not  the  natural  and  probable  consequence  of  the  act 
complained  of,  but  the  result  of  some  other  or  secondary  cause. 

"Where  sickness  is  the  du'cct  or  proximate  consequence  of  a 
wrongful  act,  the  pain  and  suffering  are  also  elements  of  the 
injury  for  which  compensation  may  be  recovered.^ 

The  person  whose  breach  of  contract,  fraud  or  other  wrong- 
ful act  causes  another  to  'be  sued,  under  such  circumstances  that 
such  suit  is  an  injurious  consequence  for  Avhich  he  is  hable,  is 
bound  to  respond  in  damages  for  the  expenses  which  are  the 
necessary  and  legal  mcidents  of  the  suit.^ 

If  one's  property  is  taken,  injm^ed  or  put  in  jeopardy,  by  an- 
other's neglect  of  duty  imposed  by  contract,  or  by  his  wrongful 
act,  any  necessary  expense  incurred  for  its  recovery,  repair  or 
protection,  are  elements  of  the  injury.  It  is  often  the  legal  duty 
of  the  injm'ed  party  to  incm'  such  expense  to  prevent  or  limit 
the  damages ;  and  if  judicious,  and  made  in  good  faith,  are  re- 
coverable though  abortive.^ 

Kequired  cektainty  to  kecovee  foe  anticipated  PEorrrs. —  In 
another  class  of  cases,  the  question  of  the  certainty  of  damages 
is  more  distinctively  involved.  They  are  cases  m  which  the 
act  complained  of  is  plainly  actionable  and  easy  of  proof,  and 
the  actual  injury  occasioned  thereby  consists  in  destroying  or 
impairing  arrangements  from  wliich  it  is  alleged  that  pecuniary 
advantages  would  have  resulted.     Such  effects  may  be  produced 

'Fillibrowu  V.    Hoar,    124  Mass.  CoUen  v.  Wright,  7E.  &B.  301;  Ran- 

580;   Meagher  v,  DriscoU,  99  Mass.  dall  v.  Trimen,  18  C.  B.  786. 
381;  Peun.  R.  Co.  v.  Books,  57  Pa.  ^  Watson  v.  Lisbon  Bridge,  14  Me. 

St.  339;  Ward  v.  Vanderbilt,  4  Abb.  201;  Hughes  v.  Quentin,  8  C.  &  P. 

App.  Dec.  521;  Indianapolis,  etc.  R.  703;  Watson  v.    Lisbon  Bridge,  14 

R.  Co.  V.  Birney,  71  lU.  391;  Klein  Me.  201;  GiUet  v.  West.  R.  R.  Co.  8 

V.  Jewett,  26  N.  J.  Eq.  474;  Ransom  Allen,   560;    Emery    v.   Lavell,    109 

V.  N.  Y.  etc.  R.  R.  Co.  15  N.  Y.  415;  Mass.  197;  Hoffman  v.  Union  Ferry 

Ohio,  etc.  R.  R.  Co.  v.  Dickerson,  59  Co.  68  N.  Y.  385;  Jutte  v.  Hughes, 

Ind.  317;  Whalenv.  St.  Louis,  etc.  R.  67  N.  Y.  268;  Lokor  v.  Damon,  17 

R.  Co.  60  Mo.  323;  Pittsburg,  etc.  R.  Pick.  284;  Hamlin  v.  G.  N.  R'y  Co. 

R.  Co.  V.  Andrews,  39  Md.  329;  John-  1  H.  &  N.  408;  Mailler  v.  Exp.  P.  L. 

son  V.  Wells,  6  Nev.  224.  61  N.  Y.  312;  Smeed  v.  Foord,  1  E. 

2PhUpot    V.   Taylor,    75    HI.    309;  &  E.  602;  Clark  v.  Russell,  110  Mass. 

Dixon  V.  Fawcus,  3  El.  &  El.  537;  133;  James  v.  Hodsden,  47  Vt.  137. 


KEQUIRED    CEKTALNTY    OF    DA]SIAGES.  107 

by  refusal  of  a  party  to  fulfil  Ms  contract,  or  by  tortious  acts  by 
which  some  business  scheme  is  frustrated.  The  pecuniary  ad- 
vantages which  would  have  been  reahzed,  but  for  the  defend- 
ant's act,  must  be  ascertained  without  the  aid  which  their  actual 
existence  would  afford.  The  plaintiff's  right  to  recover  for  such 
a  loss  depends  on  his  proving  with  suflBcient  certainty  that  such 
advantages  would  have  resulted,  and,  therefore,  that  the  act 
complained  of  prevented  them.  If  a  vendor  fails  to  dehver 
property,  pursuant  to  his  contract  of  sale,  the  vendee,  having 
paid  for  it,  is  deprived  of  such  benefit  as  such  sale  completed 
would  have  conferred,  which  is  a  loss  equal  to  the  value  of  the 
property  at  the  time  it  should  have  been  dehvered,  together 
with  interest  from  that  time.  This  value  can  generally  be 
proved  with  great  certainty.  If  the  property  has  not  been  paid 
for,  the  compensation  is  still  adjusted  with  reference  to  the 
value,  and  is  the  difference  between  the  contract  price  and  the 
value.  Thus  the  vendee  is  entitled  to  recover  according  to  the 
advantage  he  would  have  derived  from  performance  of  the  con- 
tract, namely,  the  profit  he  could  have  made  by  the  bargain. 
He  is  entitled  to  such  sum  as  would  enable  hun  to  obtain  the 
property  if  it  is  obtainable.^ 

On  the  other  hand,  where  a  vendee  breaks  his  contract,  the 
property  is  left  on  the  vendor's  hands ;  his  loss  is  equal  to  the 

I  In  Haskell  v.  Hunter,  23  Mich,  proper  measure  of  damages  is  the 

305,  an  action  was  brought  for  dam-  difference     between    the    contract 

ages  for  breach  of  a  contract  to  sell  price  of  the  lumber  not  delivered 

and  deliver  lumber,  and  it  appeared  and  the  wholesale  price  at  the  place 

that  a  portion  of  the  lumber  had  of  deh very ,  was  held  to  be  erroneous. 

been  dehvered  to  the  plaintiffs  at  a  The  true  measure  of  damages  is  the 

place  other  than  that  specified  in  the  difference  between  the  contract  price 

contract,  and  subject  to  a  heavy  bill  and  what  it  would  have  cost  the 

of  freight  in  consequence  tliereof.  plaintiffs  to  procure,  at  the  place  of 

In  the  absence  of  any  proof  that  the  delivery,  and  at  the  time  or  times 

plaintiffs  had  accepted  the  same  in  when  it  was  reasonable  and  proper 

satisfaction  to  that  extent  of  the  for  them  to  supply  themselves  with 

contract,  or  had  waived  their  right  lumber  of  the  kind  and  quality  they 

to  compensation  to  that  extent  for  were  to  receive  on  the  contract;  and 

the  breach  thereof,  it  was  not  proper  if  it  were  unpracticable  to  supply 

to  deduct  the  amount  so  dehvered  themselves,   except  at  retail  rates, 

from  the  whole  amount  to  be  deliv-  they  were  entitled  to  demand  those 

ered  by  the  contract.     An  instruc-  rates  of  the  defendants, 
tion  to  the  jury  in  such  case  that  the 


108  COMPENSATION. 

difference  b3tween  the  contract  price  and  any  less  sum  the  prop- 
erty is  worth  when  the  vendee  was  bound  to  take  and  pay  for 
it.  The  loss  he  suffers  is  the  profit  he  would  have  made  by  the 
completion  of  the  sale.^ 

In  many  cases  the  sum  which  shall  represent  the  value  to  a 
vendee  who  has  been  disappointed  in  the  receipt  of  property 
bargained  for,  cannot  be  ascertained  from  proof  of  a  market 
value,  either  because  the  article  is  not  obtainable  in  market,  or 
because  it  is  contracted  for,  and  must  be  obtained  from  the 
vendor,  to  answer  a  particular  purpose,  and  not  for  resale.  Then, 
in  applying  the  general  rule,  that  the  damages  for  breach  of 
contract  are  to  be  measured  by  the  benefits  which  would  have 
been  received  if  the  contract  had  been  performed,  resort  must 
be  had  to  the  known  or  customary  use  of  the  property,  and 
such  practical  elements  of  value  as  the  case  presents.  So,  if  the 
sale  is  made  with  warranty,  express  or  implied,  that  the  article 
is  of  a  particular  description,  or  suitable  for  a  particular  use  ; 
and  hence,  on  a  breach  by  the  vendor,  the  damages  have  to  be 
computed  according  to  the  actual  loss  in  respect  to  that  object. 
The  ascertainment  of  the  damages  may  involve  an  inquiry  into 
the  advantages  derivable  from  the  deUvery  of  articles  of  the 
required  description,  or  suitable  for  the  contemplated  use,  and 
of  losses  occasioned  by  the  breach,  with  reference  to  the  partic- 
ular purpose  of  the  contract,  as  known  to  the  parties.  In  such 
cases,  the  same  degree  of  certainty  is  not  always  attainable,  and 
there  is  much  conflict  of  authority  as  to  the  proper  scope  of 
inquiry.  The  same  considerations  apply  to  the  question  of  the 
proper  mode  of  arriving  at  the  amount  of  damage,  whatever 
be  the  nature  of  the  contract.  The  injured  party  is  entitled  to 
gains  prevented  and  losses  sustained,  if  he  can  prove  them  with 
sufficient  certainty.  In  Fletcher  v.  Tayleur,^  the  action  was 
brought  against  a  ship-builder  to  recover  damages  for  non- 
delivery of  an  iron  ship,  at  the  time  appointed  in  the  contract. 
The  ship  was  intended  by  the  plaintiffs,  and  from  the  nature  of 

1  Gordon  v.  Norris,  49  N.  H.  376;  Hfimlin,  55  Ga.   259;  McCracken  v. 

Haines  v.  Tucker,  50  N.  H.  307;  Col-  Webb,  36  Iowa,  551;  Dustin  v.  McAn- 

lins    V.    Delaporte,    115    Mass.    159;  drew,    44    N.    Y.    72;    Hayden    t. 

Ulman  v.  Kent,  60  III.  271;  Sanborn  Demets,  53  N.  Y.  426. 

V.   Benedict,   78  111.  310;  Camp  v.  "- 17  C.  B.  21. 


EEQUIRED   CEETAESTTT   OF   DA3IAGES.  109 

her  fittings,  the  defendant  must  have  known  she  was  intended, 
for  a  passenger  ship  in  the  Austrahan  trade.  The  witnesses 
called  on  the  part  of  the  plaintiff  stated  that  the  vessel  would, 
in  all  probability,  have  obtained,  if  completed  by  the  time  men- 
tioned in  the  contract,  at  the  then  cmTent  rates,  an  outward 
freight  of  about  '7,000?.,  and  a  gross  freight  home  of  about 
9,500?.,  and  that,  allowing  for  the  necessary  outlay  and  expenses, 
the  profits  would,  in  all  probabihty,  have  been  a  sum  somewhat 
exceeding  7,000?.  The  amount  of  freight  received  by  the 
plaintiffs  when  the  ship  sailed  was  4,280?.  The  court  submitted 
the  case  to  the  jury,  to  be  decided  by  the  rule  laid  down  in 
Hadley  v.  Baxendale,  and  the  jury  returned  a  verdict  in  favor 
of  the  plaintiffs  for  2,750?.,  which  was  sustained.  Under  the 
particular  circumstances,  it  is  1 3  be  inferred  that  the  data  for 
ascertaining  what  the  ship  would  have  earned  if  she  had  been 
finished  at  the  proper  time,  were  not  purely  conjectural,  but 
were  nearly  as  reliable  as  is  the  proof  of  market  valaes. 

But  while  this  case  on  its  facts  is  cjuite  satisfactory,  and  no 
doubtful  principles  are  announced  in  it,  the  damages  were  ar- 
rived at  in  a  manner  which  the  courts  in  this  country  have  gen- 
erally refused  to  adopt ;  that  is,  where  there  is  any  other  and 
more  certain  method  of  ascertaining  the  damages,  they  will  not 
generally  attempt  to  ascertain  what  profits  could  be  realized  by 
conducting  a  business.^  In  actions  for  damages  for  not  fulfill- 
ing in  time  contracts  for  particular  works  to  be  completed  at  a 
stipulated  time,  the  plaintiff  cannot  recover  damages  estimated 
on  the  value  of  profits  which  would  have  been  realized  by  the 
use  of  the  works  if  the  contract  had  been  performed.  The 
value  of  such  use  for  general  purposes,  to  which  they  are 
adapted,  or  some  known  use  for  which  they  were  intended,  dm*- 
ing  the  delay,  with  any  expenses  which  have  to  be  incm-red  in 
the  meantime,  is  usually  the  measure  of  damages.^ 

>  Taylor  t.   Maguire,  12  Mo.  313;  v.  Fay,  64  III.  417;  Green  v.  Mann, 

Blanchard    v.    Ely,    21   Wend.    342;  11  111.  614;  Priestly  v.  N.  I.  &  C.  E. 

Walker    v.    Moore,    1    Sneed,    515;  R.  Co.  26  lU.  207;  Strawn  v.  Coggs- 

Porter  v.    Wood,    3    Humph.     36;  weU,  28  HI.  461;  Fleming  v.    Beck, 

Singer  v.  Farnsworth,  1  Ind.  484.  48  Pa.  St.  309;  Lewis  v.  Atlas  M.  L. 

=  Griffin  v.  Colver,  16  N.  Y.  489;  Ins.  Co.  61  Mo.  534;  Green  v.  Will- 
Taylor  V.  Bradley,  39  N.  Y.  128;  Mc-  iams,  45  lU.  208;  Dean  v.  White,  5 
Boyle  V.  Reeder,  1  Ired.  607;  Benton  Iowa,  266;  Rogers  v.  Beard,  36  Barb. 


110  COMrENSATION. 

In  particular  cases  there  may  be  losses  in  outlays  made  by 
the  injured  party,  in  anticipation  of  the  performance  by  the 
other  party,  and  actual  loss  of  wages  of  men  kept  idle,  and 
various  other  like  items,  which  are  easily  proved,  and  these,  with 
the  rental  value  of  the  agreed  structure,  enable  the  court  to  ascer- 
tain the  damages  with  more  certainty  than  by  consideration  of 
profits  to  be  made  in  conducting  a  business  where  nearly  all  the 
factors  in  the  calculation  are  supposititious.^ 

But  where  there  is  not  such  a  certain  mode  of  estimating  dam- 
ages, the  court  will  not  dismiss  the  injured  party  with  nom- 
inal damages,  unless  the  case  is  such  there  is  no  certainty  that  he 
has  suffered  actual  injury.  In  a  suit  by  an  agent  against  a  life 
insurance  company  for  damages  resulting  from  his  discharge 
during  the  term  of  his  engagement,  his  measure  of  damages  is 
the  amount  he  has  lost  in  consequence.  And  testimony  of  actu- 
aries as  to  the  probable  value  of  renewals  for  the  remainder  of 
his  term,  on  policies  already  obtained,  is  competent  to  assist  in 
arriving  at  the  result.  But  an  estimate  of  the  probable  earnings, 
thereafter,  derived  from  proof  of  the  amount  of  his  collec- 
tions and  commissions  before  the  breach,  Avithout  other  proof 
relating  thereto,  was  held  too  speculative  to  be  admissible.^ 

In  estimating  the  damages  sustained  by  a  railroad  company 
for  the  laying  out  of  a  highway  across  their  railroad,  the  jury 
have  no  right  to  take  into  consideration  any  supposed  future 
benefit  to  them,  from  a  probable  increase  of  business,  in  conse- 
quence of  the  establishment  of  the  new  highway  ;  and  evidence 
of  payments  of  money  by  them,  for  accidents,  at  their  several 
crossings,  and  of  the  comparative  profit  of  travel  over  their 
railroad,  between  different  stations,  is  inadmissible ;  it  is  too  un- 
certain and  contingent.^     The  conjectural  or  possible  profits  of  a 

31;  Snell  v.  Cottingliam,  72  lU.  161;  1  Disney,  23;  Blair  v.  Kilpatrick,  40 

St.  Lewis,  etc.  R.  R.  Co.  v.  Lurton,  Ind.  312;  Thompson  v.  Shattuck,  2 

72  111.   118;  Cassidy  v.  Le  Fevre,  45  Met.  615;  Foard  v.  Atlantic,  etc.  R. 

N.  Y.  562;  Parker  v.  Gilliam,  1  Ired.  R.  Co.  8  N.  C.  235. 

545;  Leroy  v.  Wiggins,  31  Ala.    13;  '  Id. 

Giles  V.  O'Toole,  4  Barb.  261;  Pettee  2  Lewis  v.  The  Atlas,  etc.  Co.  61 

V.  Tenn.  M.  Co.  1  Sneed,  381;  West-  Mo.  534. 

ern  G.  R.   Co.  v.   Cox,   39  Ind.  260;  ^  Boston,  etc.  R.  R.  Co.  v.  Middle- 
Heard  V.  Holman,  19  C.  B.  N.  S.  1;  sex,  1  Allen,  324. 
Davis  V,  Cincinnati,  etc.  R.  R.  Co. 


EEQUIKED    CERTAINTY    OF   DAilAGES.  Ill 

TvhaKng  or  other  voyage  cannot  be  taken  into  consideration  in 
estimating  the  damage  against  a  master  for  running  away  with 
the  vessel  and  abandoning  the  vo3*age.^  ^ov  can  a  party  re- 
cover damages  for  a  contemplated  advance  in  the  price  of  real 
estate,  from  the  erection  and  operation  of  a  brick  factory,  on 
adjoining  land,  in  an  action  for  the  breach  of  the  agreement  to 
erect  and  operate  it.  ^ 

"Warraxty  of  seeds. —  Where,  however,  the  defendant  sold 
cabbage  seed,  and  warranted  it  to  produce  Bristol  cabbages, 
which  warranty  was  untrue,  it  was  held  tiiat  the  damages  re- 
coverable were  the  value  of  the  crop  of  Bristol  cabbages,  such 
as  would  ordinaril}?-  have  been  produced  that  year,  deducting  the 
expense  of  raising  the  crop  and  also  the  value  of  the  crop  actually 
raised.^  What  would  have  been  produced  from  other  seed,  and 
of  the  kind  warranted,  of  course  could  not  be  proved  directly, 
for  it  was  not  attempted ;  but  the  regularity  of  production, 
under  usual  conditions,  is  such  that  a  judicial  conclusion  may  be 
based  upon  it,  as  sufficiently  certain.  Mere  speculative  profits, 
such  as  might  be  conjectured,  would  be  the  probable  result  of 
an  adventure,  defeated  by  the  breach  of  contract,  the  gains  from 
which  are  entirely  conjectural,  and  with  respect  to  which  no 
means  exist  of  ascertaining,  even  approximately,  the  proba- 
ble results,  cannot,  under  any  circumstances,  be  brought  within 
the  range  of  damages  recoverable.  The  cardinal  rule,  in  re- 
lation to  the  damages  to  be  compensated  on  the  breach  of 
a  contract,  that  the  plaintiff  must  establish  the  quantum  of 
his  loss,  by  evidence,  from  which  the  jur}^  wiU  be  able  to 
estimate  the  extent  of  his  injury,  will  exclude  all  such  elements 
of  injury  as  are  incapable  of  being  ascertained  by  the  usual  rules 
of  evidence,  to  a  reasonable  degree  of  certainty.*    Instances  of 

>  Brown  V.  Smith,  13  Cush.  366;  'Passenger  v.  Thornbnrn,   34  N. 

Schooner  Lively,  1  Gall.  314;  Boyd  Y.  634;  Wolcott  r.  Mount,  36  N.  J. 

V.  Brown,  17   Pick.  453;   The   Anna  L.  263;  Van  Wyck  v.  AUen,  69  N.  J. 

:Maria,  3  Wheat.  337;  Delcol  v.  Ar-  61;  White  v.  Miller,  71  N.  Y.  133; 

nold,  3  Dall.  333.  Fenis  v.    Comstock,    33  Conn.  513; 

-Dullen  V.  Taylor,  35  Upp.  Can.  Q.  Page  v.  Pavey,  8  C.  &  P.  769;  Ran- 

B.  395;  Rockford,  etc.  R.  R.  Co.  v.  dal  v.  Roper,  96  Eng.  C.  L.  83. 

Beckeneier,  73  lU.  267;  Watterson  V.  ^Wolcott  v.   Mount,   36  N.  J.  L. 

AUeghany,  etc.  R.  R.  Co.  74  Pa.  St.  271. 
208. 


112  COMPENSATION. 

such  uncertain  damages  are  profits  expected  from  a  whaling 
voyage,  and  the  gains  which  depend  in  a  great  measure  upon 
chance ;  they  are  too  purely  conjectural  to  be  capable  of  entering 
into  compensation,  for  non-performance  of  a  contract.^  For  a 
similar  reason,  the  loss  of  the  value  of  a  crop,  for  which  seed 
had  been  sown,  the  yield  of  which  would  depend  upon  the  con- 
tingencies of  weather  and  season,  would  be  excluded  as  incapa- 
ble of  estimation  with  the  degree  of  certainty  which  the  law 
exacts  in  the  proof  of  damages.  But,  if  a  vessel  is  under 
charter,  or  engaged  in  a  trade,  the  earnings  of  which  can  be 
ascertained  by  reference  to  the  usual  schedule  of  freights  in  the 
market,  or,  if  a  crop  has  been  sown  and  the  ground  prepared  for 
cultivation,  and  the  complaint  is,  that,  because  of  an  inferior 
quality  of  the  seed,  a  crop  of  less  value  is  produced,  by  these 
circumstances  the  means  would  be  furnished  to  enable  the  jury 
to  make  a  proper  estimation  of  the  injurj^  resulting  from  the 
loss  of  profits  of  this  character.^ 

Prospective  growth  of  fruit  orchard. —  An  instructive  case 
arose  in  Ohio  mvolving  this  kind  of  uncertainty.^  The  action 
was  brought  on  a  contract  by  which  the  defendant  agreed  to 
make  a  lease,  for.  the  term  of  ten  years,  to  the  plaintiff,  of  cer- 
tain lands  on  which  to  plant  and  cultivate  a  peach  orchard. 
The  breach  consisted  in  the  failure  to  make  a  lease,  and  in  his 
causing  the  plaintiff,  within  two  years  from  his  taking  posses- 
sion, to  be  evicted  from  the  premises  ;  but  after  the  peach  trees 
were  planted.  On  the  trial,  the  plaintiff  was  permitted  to  give 
evidence  of  the  probable  profits  that  might  in  the  future  be 
reahzed  from  the  orchard,  judging  from  the  number  of  crops 
and  the  prices  of  peaches  in  the  county,  for  the  last  ten  or  fif- 
teen years.  This  evidence  was  held  by  the  appellate  court  to 
be  incompetent ;  that  it  was  too  uncertain  and  speculative.  The 
court  say :  "  To  the  extent  that  the  damages  depended  on  the 
loss  of  the  use  of  the  property,  its  market  value  at  the  time  of 
the  eviction,  subject  to  the  performance  of  the  contract  on  the 
part  of  the  plaintiff,  furnished  the  standard  for  assessing  the 
dama"-es.     If  it  had  no  general  market  value,  its  value  should 

>  Wolcott  V.  Mouut,  3G  N.  J.  L.  271.         ^  Rhodes  v.  Beard,  16  Ohio  St.  573. 
2  Id. 


EEQUIKED    CERTAINTY    OF    DAMAGES.  113 

have  been  ascertained  from  ^Hitnesses  whose  skill  and  experience 
enabled  them  to  testify  directly  to  such  value,  in  view  of  the 
hazards  and  chances  of  the  business  to  which  the  land  was  to  l>e 
devoted.^  This  would  only  be  applying  the  same  principle  for 
ascertaining  the  value  of  property  which,  by  reason  of  its  lim- 
ited use,  had  no  market  value,  which  is  adopted  with  reference 
to  proving  the  present  worth  of  the  future  use  of  property 
which,  by  reason  of  its  being  in  greater  demand,  has  a  market 
value.  In  the  case  of  property  of  the  former  description,  the 
range  for  obtaining  testimony  as  to  the  value  is,  of  course,  more 
circumscribed  than  it  is  in  the  case  of  property  of  the  latter 
description.  But,  in  either  case,  the  pro^dng  the  value  of  the 
property  by  witnesses  having  competent  knowledge  of  the  sub- 
ject, is  more  certain  and  direct  than  to  undertake  to  do  so  by 
submitting  to  the  jury,  as  grounds  on  which  to  make  up  their 
verdict,  the  supposed  futm-e  profits.  The  profits  testified  to 
.  .  .  were  remote  and  contingent,  depending  on  the  charac- 
ter of  the  future  seasons  and  markets,  and  a  variety  of  other 
causes  of  no  certain  and  uniform  operation." 

Peofits  of  special  contracts. —  A  party  to  a  contract  is  en- 
titled to  recover,  against  the  other  party  who  violated  it,  dam- 
ages for  the  profits  he  would  have  made  out  of  it  had  it  been 
performed.  It  is  no  objection  to  their  recovery  that  they  can 
not  be  directly  and  absolutely  proved.  In  the  nature  of  things, 
the  defendant  having  prevented  such  profits,  direct  and  absolute 
proof  is  impossible.  The  injured  party  must,  however,  intro- 
duce evidence  legally  tending  to  estabhsh  damage,  and  legally 
sufficient  to  warrant  a  jury  in  coming  to  the  conclusion  that  the 
damages  they  find  have  been  sustained  ;  but  no  greater  degree 
of  certainty  in  this  proof  is  required  than  of  any  other  fact 
which  is  essential  to  be  estabhshed  in  a  civil  action.  If  there 
is  no  more  certain  method  of  arriving  at  the  amount,  the  injured 
party  is  entitled  to  submit  to  the  jury  the  particular  facts  which 
have  transpired,  and  to  show  the  whole  situation,  which  is  the 
foundation  of  the  claim,  and  expectation  of  profit,  so  far  as 
any  detail  offered  has  a  legal  tendency  to  support  such  claim.* 

'  Griffin  v.  Colver,  16  N.  Y.  489;  Giles  v.  O'Toole,  4  Barb.  2G1;  Newburgh 
V.  Walker,  8  Gratt.  16. 
Vol.  1—8 


114  COMPENSATION. 

In  the  leading  case  which  arose  in  ISTew  York,^  which  has 
been  extensively  cited  and  approved,  the  plaintiffs  agreed  to 
furnish  and  deliver  marble,  Avronght  in  a  particular  manner, 
from  a  particular  quarry,  for  a  public  building.  The  quantit}'^ 
necessary  to  fill  the  plaintiffs'  contract  was  88,819  feet,  for  which 
they  were  to  be  paid  a  specified  price.  The  plaintiff  afterwards 
contracted  with  the  proprietors  of  that  quarry  for  the  marble. 
"When  the  plaintiffs  had  delivered  14,Y79  feet  of  marble,  and 
had  on  hand  at  the  quarry  3,308  feet  ready  for  delivery,  the 
defendants  suspended  the  performance  of  the  contract,  without 
any  fault  of  the  plaintiffs.  They  sought  to  recover  the  profits 
of  the  contract  and  also  the  damages  to  which  they  were  sub- 
jected for  the  consequent  violation  of  their  sub-contract  for  the 
marble  at  the  quarry.  Nelson,  C.  J.,  said :  "  It  is  not  to  be 
denied  that  there  are  profits  or  gains  derivable  from  a  contract 
which  are  uniformly  rejected  as  too  contingent  and  speculative 
in  their  nature,  and  too  dependent  upon  the  fluctuation  of  the 
markets  and  chances  of  business,  to  enter  into  a  safe  or  reason- 
able estimate  of  damages.  Thus  any  supposed  successful  opera- 
tion the  party  might  have  made,  if  he  had  not  been  prevented 
from  realizing  the  proceeds  of  the  contract  at  the  time  stipu- 
lated, is  a  consideration  not  to  be  taken  into  the  estimate. 
Besides  the  uncertain  and  contingent  issue  of  such  an  operation 
in  itself  considered,  it  has  no  legal  or  necessary  connection  with 
the  stipulations  between  the  parties,  and  cannot,  therefore,  be 
presumed  to  have  entered  into  their  consideration  at  the  time  of 
contracting.  It  has  accordingly  been  held  that  the  loss  of  any 
speculation  or  enterprise  in  wliich  a  party  may  have  embarked, 
relying  on  the  proceeds  to  be  derived  from  the  fulfilment  of  an 
existing  contract,  constitutes  no  part  of  the  damages  to  be  re- 
covered in  case  of  breach.  So,  a  good  bargain  made  by  a 
vendor,  in  anticipation  of  the  price  of  the  article  sold ;  or  an 
advantageous  contract  of  resale,  made  by  a  vendee  confiding  in 
the  vendor's  promise  to  deliver  the  article,  are  considerations 
excluded  as  too  remote  and  contingent  to  affect  the  question  of 
damages.  .  .  .  When  the  books  and  cases  speak  of  the 
profits  anticipated  from  a  good  bargain  as  matters  too  remote 
and  uncertain  to  be  taken  into  account  in  ascertaining  the  true 

*  Masterton  v.  Mayor,  etc.  of  Brooklyn,  7  Hill,  61. 


REQUIRED   CERTAIN-IT   OF   DAilAGES.  115 

measure  of  damages,  they  usually  have  reference  to  dependent 
and  collateral  engagements,  entered  into  on  the  faith  and  in  ex- 
pectation of  the  performance  of   the  principal  contract.     The 
performance  or  non-performance  of  the  latter  may,  and  doubt- 
less often  does,  exert  a  material  influence  upon  the  collateral 
enterprises  of  the  party ;  and  the  same  may  be  said  as  to  his 
general  affairs  and  business  transactions.     But  the  influence  is 
altogether  too  remote  and  subtle  to  be  reached  by  legal  proof 
or  judicial  investigation.     And,  besides,  the  consequences,  when 
injurious,  are  as  often,  perhaps,  attributable  to  the  indiscrelion 
and  fault  of  the  party  himself,  as  to  the  contract  of  the  delin- 
quent contractor.     His  condition,  in  respect  to  the  measure  of 
damages,  ouglit  not  to  be  worse  for  having  failed  in  his  engage- 
ment to  a  person  whose  affairs  are  embarrassed,  than  if  it  had 
been  made  with  one  in  prosperous  or  affluent  circumstances.^   But 
profits  or  advantages  which  are  the  direct  and  immediate  fruits 
of  the  contract  entered  into  between  the  parties,  stand  upon  a 
different  footing.     These  are  part  and  parcel  of  the  contract 
itself,  entering  into  and  constituting  a  portion  of  its  very  ele- 
ments ;  something  stipulated  for,  the  right  to  the  enjojnnent  of 
which  is  just  as  clear  and  plain  as  to  the  fulfilment  of  any  other 
stipulation.     They  are  presumed  to  have  been  taken  into  con- 
sideration, and  deliberated  upon,  before  the  contract  was  made, 
and  fonned,  perhaps,  the  only  inducement  to  the  arrangement. 
The  parties  may  have  entertained  different  opinions  concerning 
the  advantages  of  the  bargain,  each  supposing  and  believing 
that  he  had  the  best  of  it ;  but  this  is  mere  matter  of  judgment, 
going  to  the  formation  of  the  contract,  for  which  each  has 
shown  himself  willing  to  take   the  responsibility,   and  must, 
therefore,  abide  the  hazard."      Applying  these  principles  to  the 
case,  the  learned  judge  said :     "  The  plaintiffs'  claim  is  substan- 
tially one  for  not  accepting  goods  bargained  and  sold ;  as  much 
so  as  if  the  subject  matter  of  the  contract  had  been  bricks, 
rough  stones,  or  other  article  of  commerce,  used  in  the  process 
of  building.     The  only  difficulty  or  embarrassment  in  applying 
the  general  rule,  grows  out  of  the  fact  that  the  article  in  ques- 
tion does  not  appear  to  have  any  well-ascertained  market  value. 
But  this  caimot  change  the  principle  which  must  govern,  but 

'  Dom.  B.  3,  tit.  5,  §  2,  art.  4 


IIG  COMrENSATION^. 

only  the  mode  of  ascertaining  the  actual  value,  or  rather  the 
cost  to  the  party  producing  it.  Where  the  article  has  no  mar- 
ket value,  an  investigation  into  the  constituent  elements  of 
the  cost  to  the  party  who  has  to  furnish  it,  becomes  necessary  ; 
and  that  compared  with  the  contract  price,  will  afford  the 
measure  of  damages.  The  jury  will  be  able  to  settle  this 
upon  evidence  of  the  outlays,  trouble,  risk,  etc.,  which  enter  into 
and  make  up  the  cost  of  the  article  in  the  condition  required  by 
the  contract,  at  the  place  of  delivery.  ...  It  has  been 
argued  that,  inasmuch  as  the  furnishing  of  the  marble  would 
have  run  through  a  period  of  five  years  —  of  which  about  one 
year  and  a  half  only  had  expired  at  the  time  of  the  suspension  — 
the  benefits  Avhich  the  party  might  have  realized  from  the  exe- 
cution of  the  contract,  must  necessarily  be  speculative  and  con- 
jectural ;  the  court  and  jury  having  no  certain  data  upon  which 
to  make  the  estimate.  If  it  were  necessary  to  make  the  esti- 
mate upon  any  such  basis,  the  argument  would  be  decisive  of 
the  present  claim.  But  in  my  judgment,  no  such  necessity 
exists.  When  the  contract,  as  in  this  case,  is  broken  before  the 
arrival  of  the  time  for  full  performance,  and  the  opposite  party 
elects  to  consider  it  in  that  light,  the  market  price  on  the  day 
of  the  breach  is  to  govern  in  the  assessment  of  damages.  In 
other  words,  the  damages  are  to  be  settled  and  ascertained 
according  to  the  existing  state  of  the  market  at  the  time  the 
cause  of  action  arose,  and  not  at  the  time  fixed  for  full 
performance.     .     .     . 

"  It  will  be  seen  that  we  have  laid  altogether  out  of  view  the 
sub-contract,  .  .  and  all  others  that  may  have  been  entered  into 
by  the  plaintiffs  as  preparatory  and  subsidiary  to  the  fulfilment 
of  the  principal  one  with  the  defendants.  Indeed,  I  am  unable 
to  comprehend  how  these  can  be  taken  into  the  account,  or  be- 
come the  subject  matter  of  consideration  at  all,  in  settfing  the 
amount  of  damages  to  be  recovered  for  a  breach  of  the  princi- 
pal contract.  The  defendants  had  no  control  over  or  participa- 
tion in  the  making  of  the  sub-contracts,  and  are  certainly  not 
to  be  compelled  to  assume  them  if  improvidently  entered  into. 
On  the  other  hand,  if  they  were  made  so  as  to  secm^e  great  ad- 
vantages to  the  plaintiffs,  surely  the  defendants  are  not  entitled 
to  the  gains  which  might  be  realized  from  them.     In  any  aspect, 


KEQUIKED    CEKTAINTY   OF    DAAIAGES.  117 

therefore,  these  sub-contracts  present  a  most  unfit  as  well  as 
unsatisfactory  basis  upon  which  to  estimate  the  real  damages 
and  loss  occasioned  by  the  default  of  the  defendants.  .  .  . 
And  yet,  the  fact  that  those  sub-contracts  must  ordmarily  be 
entered  into,  preparatory  to  the  fulfilment  of  the  principal  one, 
shows  the  injustice  of  restricting  the  damages  in  cases  hke  the 
present,  to  compensation  for  the  work  actually  done,  and  the 
item  of  the  materials  on  hand.  We  should  thus  throw  the  whole 
loss  and  damao:e  that  would  or  mi^ht  arise  out  of  contracts  for 
further  materials,  etc.,  entirel}^  upon  the  party  not  in  default. 
If  there  was  a  market  value  of  the  article  in  this  case,  the 
question  would  be  a  simple  one.  As  there  is  none,  however,  the 
parties  will  be  obliged  to  go  into  an  inquiry'"  as  to  the  actual  cost 
of  furnishing  the  article  at  the  place  of  delivery ;  and  the  comi; 
and  jury  sliould  see  that  in  estimating  this  amount,  it  be  made 
upon  a  substantial  basis,  and  not  left  to  rest  upon  loose  and 
speculative  opinions  of  witnesses.  The  constituent  elements  of 
the  cost  should  be  ascertained  from  sound  and  rehable  sources ; 
from  practical  men,  having  experience  in  the  particular  depart- 
ment of  labor  to  which  the  contract  relates.  It  is  a  very  easy 
matter  to  figm-e  out  large  profits  upon  paper ;  but  it  will  be 
found  that  these,  in  a  great  majority  of  the  cases,  become  seri- 
ously reduced  when  subjected  to  the  contingencies  and  hazards 
incident  to  actual  performance.  A  jury  should  scrutinize  with 
care  and  watchfulness  any  speculative  or  conjectured  account  of 
the  cost  of  furnishing  the  article  that  would  result  in  a  very 
unequal  bargain  between  the  parties,  by  which  the  gains  and 
benefits,  or  in  other  words,  the  measure  of  damages  against  the 
defendants,  are  unreasonably  enhanced.  They  should  not  over- 
look the  risks  and  contingencies  which  are  almost  inseparable 
from  the  execution  of  contracts  like  the  one  in  question,  and 
which  increase  the  expense  independently  of  the  outlay  in  labor 
and  capital." 

Where  a  party  has  contracted  to  perform  labor  from  which  a 
profit  is  to  spring  as  a  direct  result  of  the  work  done  at  a  con- 
tract price,  and  he  is  prevented  from  earning  this  profit  by  the 
wrongful  act  of  another  party,  the  loss  of  this  profit  is  a  direct 
and  natural  result  which  the  law  will  presume  to  follow  the 
breach  of  the  contract ;  and  he  is  entitled  to  recover  it  without 


£t>1 


118  COMPENSATION. 

special  allegations  in  his  declarations.  This  he  will  be  entitlc(J[ 
to  establish  by  showing  how  much  less  than  the  contract  price 
it  will  cost  to  do  the  work  or  perform  the  contract.^ 

Actual  damages  clearly  include  the  direct  and  actual  loss 
which  a  plaintiff  sustains  proj?ter  rem  ipsam  noii  hahltam.  And 
in  case  of  such  contracts,  the  loss  of  profits,  among  other  things, 
is  the  difference  between  the  cost  of  doing  the  work  and  the 
price  to  be  paid  for  it.  This  difference  is  the  inducement  and 
real  consideration  which  causes  the  contractor  to  enter  into  the 
contract.  For  this  he  expends  his  time,  exerts  his  sldll,  uses  his 
capital,  and  assumes  the  risks  which  attend  the  enterprise. 
Wherever  profits  are  advisedly  spoken  of  as  not  a  subject  of 
damages,  it  will  be  found  that  something  contingent  upon  future 
bargains,  or  speculations,  or  states  of  the  market,  are  referred 
to,  and  not  the  difference  between  an  agreed  price  of  something- 
contracted  for  and  its  ascertainable  value  or  cost.^ 

Profits  fkom  commercial  ventukes. —  The  success  of  busi- 
ness ventures  is  not  antecedently  certain  in  an  absolute  sense ; 
they  are  generally  'undertaken  in  rehance  upon  probabihties, 
based  upon  the  laws  of  demand  and  supply.  Though  specula- 
tive in  their  inception,  by  anticipating  future  values,  they  are 
retrospectively  examined,  generally,  when  they  become  subjects 
of  judicial  investigation,  and  then  such  values  are  capable  of 
proof.  If  the  business,  the  profits  from  which  are  in  question, 
is  a  trading  business,  they  must  depend  on  a  succession  of  pur- 
chases of  stock  of  some  sort  for  sale,  or  the  emplo}Tnent  of 

1  Burrill  v.  N.  Y.  etc.  Co.  14  Mich.  8;  Hoy  v,  Gronoble,    34  Pa.  St.  9; 

34;  Hinckley  t.  Beckwith,  13  Wis.  Thompson  v.  Jackson,  14  B.  Mon.  93; 

31;  McAndrews  v.  Tippett,  39  N.  J.  Railroad  v.  Reeves,  20  WaU.  176:  Fox 

L.  105;   United  States  v.  Speed,    8  v.  Harding,  7  Cush.  516;  Milbournv. 

WaU.  77;  DooUttle  v.  McCuUough,  BeUoni,  39  N.  Y.  53;  Elizabethtown, 

12  Ohio  St.  360;  Middekauf  v.  Smith,  etc.  R.  R.  Co.  v.  PaUenger,  10  Bush. 

1  Md.  343;  Clark  v.  Mayor  of  N.  Y.  185;  Wallace  v.  Tumlin,  42  Ga.  462; 

4  N.  Y.  338;  Cook  v.  Commissioners  United  States  v.  Smith,  4  Otto,  214; 

of  Hamilton,  6  McLean,  612;  Frye  v,  Somers  v.   Wright,    115  Mass.   292; 

Maine,  etc.  R.  R.   Co.  67  Me.   414;  Richmond  v.  the  D.  &  S.  etc.  Co.  40 

Lentz  V.  Chateau,  42  Pa.    St.  435;  Iowa,  264;   Fail   v.  McRee,  36  Ala. 

James  v.   Adams,    8    W.    Va.    568;  61;  Goldman  v.  Wolff,  6  Mo.  App. 

Cramer  v.  Metz,  57  N.  Y.  659;  Story  490. 

V.  N.  Y.  etc.  R.  R.  Co.  6  N.  Y.  85;  ■=  Philadelphia,  etc.   R.  R.    Co.   v. 

Devlin  v.  Mayor  of  N.  Y.  63  N.  Y.  Howard,  13  How.  U.  S.  344. 


EEQUIKED    CERTArS'TY    OF    DA:MAGES.  119 

labor  or  materials  to  be  purchased  for  its  production,  and  a  suc- 
cession of  sales  to  prospective  customers.  Where  the  injury- 
complained  of  is  an  interruption  or  prevention  of  such  a  busi- 
ness, or  in  causing  a  diminution  of  it,  it  is  scarcely  possible 
to  estabhsh  damages  to  a  very  high  degree  of  certainty.  In 
many  cases  the  best  conclusion  will  be  merely  a .  probable  ojie. 
The  rule  of  law  is  the  same  in  all  cases,  that  the  damages  be 
proved  with  certainty ;  but  a  greater  degree  of  certainty  being- 
attainable  in  some  cases  than  is  possible  Avhen  the  result  sought 
depends  on  the  chances  of  future  bargains,  the  law  will  not 
permit  the  proof,  which  is  certain,  to  be  neglected,  and  a  resort 
to  that  which  is  less  satisfactory ;  though  the  latter,  in  other 
cases,  is  the  best  the  natm^e  of  the  case  admits  of,  and  must  be 
received  as  the  only  guide  to  the  proper  amount  of  compensa- 
tion, and  would  then  be  available. 

One  partner  may  maintain  an  action  at  law  against  another 
for  a  breach  of  the  co-partnership  articles,  in  dissolving  before 
the  time  Imiited  therefor.  And  the  action  is  maintainable 
before  the  expiration  of  the  period  for  which  the  partnei'ship 
was  to  continue.  The  damages,  in  such  an  action,  are  the  profits 
which  would  have  accrued  to  the  plaintiff  from  the  continuation 
of  the  partnership  business,  and  which  are  lost  by  the  unauthorized 
dissolution.^  The  object  of  commercial  partnerships  is  profit. 
This  is  the  motive  upon  which  men  enter  mto  the  relation.  The 
only  legitimate  beneficial  consequence  of  continuing  a  partner- 
ship is  the  making  of  profits.  The  most  direct  and  legitimate 
injurious  consequence,  which  can  follow  upon  an  unauthorized 
dissolution  of  a  partnership,  is  the  loss  of  profits.  Unless  that 
loss  can  be  made  up  to  the  injured  party,  it  is  idle  to  sa}^  that 
any  obligation  is  imposed  by  a  contract  to  continue  a  partner- 
ship for  a  fixed  period.^  It  is  safe  to  say  that  such  profits  can 
not  be  proved  except  to  a  reasonable  probability.  The  profits 
immediately  before  the  dissolution  may  be  shown  as  a  compe- 
tent fact  for  the  consideration  of  the  jmy.  In  the  case  which 
has  been  cited,^  Johnson,  J.,  said :  "  It  seems  to  me  quite  obvi- 
ous that,  outside  of  a  court  of  justice,  no  man  would  underta^ke 

'  Bagley  v.  Smith,  10  N.  Y.  489.  ^Bagiey  v.  Smith,  supra. 

'^Id.;  McNeil  v.  Eeid,  9  Bing.  68; 
Gale  V.  Leckie,  2  Stark.  107. 


120  COMPENSATION. 

to  form  an  opinion  as  to  prospective  profits  of  a  business,  with- 
out in  the  first  place,  informing  himself  as  to  its  past  profits,  if 
that  fact  were  accessible.  As  it  is  a  fact  in  its  nature  entirely 
capable  of  accurate  ascertaimnent  and  proof,  I  can  see  no 
more  reason  why  it  should  be  excluded  from  the  considera- 
tion of  the  tribunal  called  upon  to  determine  conjecturally  the 
amount  of  prospective  profits,  than  proof  of  the  nature  of  the  busi- 
ness, or  any  other  circumstance  connected  with  its  transaction. 
It  is  very  true  that  there  is  great  difficulty  in  making  an  accm^ate 
estimate  of  future  profits,  even  with  the  aid  of  knowing  the 
amount  of  past  profits.  This  difiiculty  is  inherent  in  the  nature 
of  the  inquiry.  We  shall  not  lessen  it  by  shutting  our  eyes  to  the 
light  which  the  previous  transactions  of  the  partnership  tln^ow 
upon  it.  I^or  are  we  more  inclined  to  refuse  to  make  the  in- 
quiry, by  reason  of  its  difficalty,  when  we  remember  that  it  is  the 
misconduct  of  the  defendants  which  has  rendered  it  necessary." 
In  a  subsequent  case,  where  the  business  in  the  past  had  been  a 
losing  one,  it  was  held  error  to  charge,  as  the  plaintiff  requested, 
that  the  jury  were  not  confined,  in  estimating  damages,  to  the 
rate  of  profits  at  the  time  of  dissolution,  but  might  consider 
and  give  damages  for  profits  that  would  probably  have  been 
made  by  the  higher  prices ;  and  might  consider  the  present  and 
probable  future  rate  during  the  balance  of  the  partnership,  though 
the  court  added :  "  It  requires  some  care.  You  are  not  to  guess 
about  this  matter.  If  you  can  rationally  see  through  this,  that 
the  profits  would  have  been  greater  in  the  future,  and  are 
greater  at  the  present  time,  than  at  the  time  of  the  dissolution, 
and  you  beheve  that  the  present  increased  profits,  if  such  there 
would  be,  are  likely  to  continue  and  increase,  and  you  can 
satisfy  yourselves  of  this  in  your  own  mind,  then  you  have  the 
right  to  look  through  the  remainder  of  the  time  of  the  partner- 
ship, maldng  a  very  careful  estimate  in  regard  to  what  the 
profits  might  probably  be."  The  supreme  court  regarded  the 
instruction  to  give  damages  for  profits  tlisit  would  j^rohahlT/  have 
been  made  by  the  higher  prices,  and  might  consider  the  present 
and  probable  future  rate,  as  going  beyond  any  previous  case  in 
favor  of  speculative  and  contingent  profits;  the  former  case 
was  referred  to  as  adhering  to  the  rule  of  certainty.  The  court 
say,  also,  "  The  case  at  bar  differs  from  that  case,  and  the  case^ 


KEQULBEU    CEilTAI>,Tr    OF    DAMAGES.  121 

cited  therein,  inasmiicli  as  in  those  cases,  where  the  court  was 
submitting  the  question  of  damages  to  the  jury,  they  were  no 
longer  prospective ;  but,  at  the  time  of  the  trial,  in  those  cases 
respectively,  the  time  had  expired  up  to  which  the  profits  in 
question  w^ere  to  be  estimated.  In  such  cases,  all  the  data  for 
ascertaining  what  profits  might  have  been  obtained  from  the 
business,  could  be  furnished  by  witnesses ;  and  there  was  no 
need  of  resorting  to  conjecture."  ^  This  case  insists  on  a  more 
rigid  rule  than  the  former  one.  It  was,  however,  a  case  in 
which  there  was  very  httle  data  for  finding  even  a  probable 
profit.^ 

Tortious  interference  with  business. —  In  actions  for  torts, 
injurious  to  business,  the  extent  of  the  loss  is  provable  by  the 
same  testimony,  and  recovery  may  be  had  for  such  loss  as  is 
proved  with  reasonable  certainty,  and  it  is  enough  to  show  what 
the  profits  would  probably  have  been.^  Certainty  is  very  desir- 
able in  estimating  damages  in  aU  cases ;  and  where,  from  the 
nature  and  circumstances  of  the  case,  a  rule  can  be  discovered 
by  which  adequate  compensation  can  be  accurately  measured, 
the  rule  should  be  applied  to  actions  of  tort,  as  well  as  in  those 
upon  contract.  The  law,  however,  does  not  require  impossibil- 
ities ;  and  cannot,  therefore,  require  a  higher  degree  of  certainty 
than  the  nature  of  the  case  admits.  There  is  no  good  reason 
for  requiring  any  higher  degree  of  certainty  in  respect  to  the 
amount  of  damages,  than  in  respect  to  any  other  branch  of  the 
cause.  Juries  are  allowed  to  act  upon  probable  and  inferential, 
as  weU.  as  direct  and  positive,  proof.  And  when  from  the  nat- 
ure of  the  case  the  amount  of  the  damages  cannot  be  estimated 
with  certainty,  or  only  a  part  of  them  can  be  so  estimated,  no 
objection  is  perceived  to  placing  before  the  jury  afi  the  facts 

'  Van  Ness  v.  Fisher,  5  Lans.  236.  Howe  Macliine  Co.   v.   Bryson,   44 

2  See  Dobbins   v.  Duquid,  65  111.  Iowa,  159;  SatcheU  v.  WiUiams,  40 

464;  Park  v.  C.  &  S.  W.  E.  R.  Co.  43  Conn.  371;  ScliUe  v.  Brokhahus,  80 

Iowa,  636;  Smith  v.  Wunderlich,  70  N.  Y.  614. 

ni.   426;    Sewall's    Falls   Bridge    v.  s  Allison  v.  Chandler,  11  Mich.  542; 

Fisk,  23  N.  H.   171;  Shafer  v.  Wil-  Dounery  v.  Bisa,  6  La.   Ann.    365; 

son,  44  Md.  208;  Lacour  v.  Mayor,  3  Shepard  v.  Milwaukee  G.  L.  Co.  15 

Duer,  400;   St.  John    v.  Mayor,  13  Wis.  318;  Sewall's  Falls  Bridge  v. 

How.   Pr.   527;    Richmond    v.    Du-  Fisk,  23  N.  H.   171;  Schile  v.  Brok- 

buque,  etc.  R.  R.  Co.  33  Iowa,  423;  hahus,  supra. 


122 


COMPENSATION. 


and  circumstances  of  the  case,  having  any  tendency  to  show 
damages,  or  their  probable  amount ;  so  as  to  enable  them  to 
make  the  most  intelligible  and  probable  estimate  which  the 
nature  of  the  case  will  permit.  This  should,  of  course,  be  done 
with  such  instructions  and  advice  from  the  court  as  the  circum- 
stances of  the  case  may  require,  and  as  may  tend  to  prevent  the 
allowance  of  such  as  may  be  merely  possible,  or  too  remote,  or 
fanciful  in  their  character,  to  be  safely  considered  as  the  result 
of  the  injury.^ 


'Allison  V.  Chandler,  supra.  In 
this  case  Christiancy,  J.,  said: 
"  Since,  fi'om  the  nature  of  the  case 
(one  of  injuiy  to  business),  the 
damages  cannot  be  estimated  with 
certainty,  and  there  is  risk  of  giving 
by  one  course  of  trial  less,  and  by 
the  other  more,  than  a  fair  compen- 
sation—  to  say  nothing  of  justice  — 
does  not  sound  policy  require  that 
the  risk  should  be  thrown  upon  the 
wrongdoer,  instead  of  the  injured 
party  ?  However  this  question  may 
be  answered,  we  cannot  resist  the 
conclusion  that  it  is  better  to  run  a 
slight  risk  of  giving  somewhat  more 
than  actual  compensation,  than  to 
adopt  a  rule  which,  under  the  cir- 
cumstances of  the  case,  will,  in  all 
reasonable  probability,  preclude  the 
injured  party  from  the  recovery  of 
a  large  proportion  of  the  damages 
he  has  actually  sustained  from  the 
injury,  though  the  amount  thus  ex- 
cluded cannot  be  estimated  with 
accuracy  by  a  fixed  and  certain 
rule."  Gilbert  v.  Kennedy,  23  Mich. 
129.  In  Holden  v.  Lake  Co.  53  N. 
H.  553,  the  action  was  case  for  so 
interfering  with  the  natiiral  flow  of 
the  river,  on  which  the  plaintiffs 
had  a  mill  for  the  manufacture  of 
woolen  goods,  as  to  diminish  its  pro- 
duction. Upon  the  question  of  dam- 
ages, one  of  the  plaintiffs  was 
permitted  to  state  that  the  cost  of 
the  raw  material  manufactured  at 
their  mill  in  producing  a  yard  of 


cloth  was  about  one-half  the  value 
of  a  yard  of  cloth  when  finished. 
There  was  no  evidence  as  to  the  cost 
of  manufacturing  a  yard  of  cloth, 
nor  the  number  of  yards  manu- 
factured, either  monthly  or  other- 
wise, but  only  the  aggregate  amount 
of  business  in  dollars  annually;  and 
the  falling  off  in  the  aggregate  busi- 
ness during  the  dry  months  of  sum- 
mer, when  the  plaintiffs  claim  they 
were  injured ;  as  compared  with 
the  average  of  the  other  months  of 
the  year.  T^he  court  say:  "  It  is  dif- 
ficult to  see  what  other  rule  could 
have  been  applied  to  show  what  the 
effect  of  the  alteration  was,  than  by 
showing  the  facts  before  and  after 
the  change,  and  how  the  change 
affected  the  stream  and  the  plaint- 
iff's rights.  .  .  .  The  cost  of  the 
cloth  would  be  made  up  of  the  cost 
of  raw  materials  and  of  the  labor 
expended  in  the  manufacture.  The 
profits,  if  anything,  would  be  ascer- 
tained by  deducting  f  I'om  the  market 
value,  first,  the  cost  of  material,  and 
then  the  expense  of  manufacture. 
But  it  seems  that  the  expense  was 
not  ascertained  in  that  way,  nor  the 
profits.  Wlien  the  mill-owner  keeps 
his  whole  force  through  the  year  on 
full  pay,  then  the  amount  he  manu- 
factures less  than  the  full  amount 
for  the  year  would  be  so  much  dead 
loss,  without  regard  to  the  profits  on 
a  single  yard;  and  the  value  of  the 
work  lost  by  lack  of  water,  would 


REQUIEED    CEETAINTY    OF    DAMAGES. 


123 


Chance  to  compete  fok  a  peize. —  In  an  action  against  a 
common  carrier  for  negligently  delaying  the  transportation  of 
models  to  compete  for  a  prize,  until  the  chance  was  decided,  the 
judges  differed  as  to  the  measure  of  damages,  and  it  was  left  un. 
decided,  whether  the  damages  should  be  given  for  the  labor  and 
materials  used  in  maldng  the  models,  or  whether  the  chance  for 
the  prize  might  be  taken  into  consideration.  Patteson,  J., 
favored  the  latter ;  he  said :  "  The  goods  were  made  for  a  specific 
purpose,  which  had  been  defeated  by  the  negligence  of  the 
defendant,  and  they  have  become  useless."     Erie,  J.,  said :  "  I 


be  found  by  deducting  the  cost  of 
raw  material  from  the  value  of  the 
cloth  that  would  liave  been  made 
with  a  full  supply  of  water." 

In  Richmond  v.  The  Dubuque,  etc. 
R.  R.  Co.  33  Iowa,  424,  the  railroad 
comijany  and  an  elevator  company 
at  Dubuque  entered  into  an  agree- 
ment, containing  tliese  stipulations: 
that  the  latter  would  erect  a  build- 
ing suitable  "for  receiving,  stor- 
ing, delivering  and  handling,  aU 
grain  that  shall  be  received  by  the 
cars  of  said  railroad  company  not 
othei'wise  consigned."'  In  a  supple- 
ment to  this  contract,  it  was  further 
provided  that  the  elevator  company 
"should  receive  and  discharge  for 
tlie  said  railroad  company  aU 
through  grain  at  one  cent  a  bushel," 
etc.,  and  that  the  elevator  should 
have  the  handling  of  all  through 
grain  at  that  price  per  bushel.  It 
was  also  provided  that  in  case  the 
grain  wa3  held  in  store  for  the  rail- 
road company  more  than  ten  days, 
then  the  elevator  company  should 
have  a  certain  per  cent,  per  bushel. 
The  contract,  by  its  terius,  extended 
for  a  period  of  fifteen  years,  and  at 
the  option  of  the  raili'oad  company 
it  was  to  be  extended  fifteen  years 
more,  but  no  times  of  payment  were 
provided  for  therein.  In  an  action 
against  the  railroad  company  for  re- 
fusing to  give  tlie  elevator  company 


the  handling  of  grain  according 
to  the  contract,  the  court  held  that  in 
the  estimate  of  damages  the  i^laint- 
iffs  were  entitled  to  recover  not  only 
loss  of  profits  which  would  have  re- 
sulted to  them  had  the  "through 
grain"  been  delivered  as  per  con- 
tract, but  also  the  loss  of  profits  re- 
sulting from  the  plaintiffs  being 
deprived  of  the  storage  of  the  grain 
as  stipulated.  There  was  allowed 
$57,750  for  the  prospective  profits  of 
handling  through  grain  at  one  cent 
per  bushel  during  the  period  of  the 
contract,  and  $11,250  for  prospective 
profits  on  storage  of  grain.  The 
court  say,  in  reference  to  the  last 
item,  ' '  There  is  not  entire  certainty 
as  to  the  amount  that  ought  to  be 
allowed,  but  this  is  no  reason  why 
none  should  be  given.  The  law  is 
satisfied  with  a  just  and  true  approx- 
imation to  the  true  amount."  See 
Howe  Machine  Co.  v.  Bryson,  44 
Iowa,  159;  Fultz  v.  Wycoff,  25  Ind. 
321;  Fleck  v.  Witherby,  20  Wis.  392; 
Heard  v.  Holman,  19  C.  B.  N.  S.  1; 
Simmons  v.  Brown,  5  R.  I.  299;  Mc- 
Night  V.  Ratcliffe,  44  Pa.  St.  156; 
Steam  Boat  Narragansett,  01c  ott, 
388;  Douty  v.  Bird,  60  Pa.  St.  48; 
Hanover,  etc.  Co.  v.  Coyle,  55  Pa. 
St.  396;  Chapman  v.  Kirby,  49  lU. 
311;  Ludlow  v.  Yonkers,  43  Barb. 
493. 


124  COan'ENSATION. 

have  great  doubts  whether  that  chance  was  not  too  remote  and 
contingent  to  be  the  subject  of  damages."  ^  In  a  sunilar  case,  in 
Pennsylvania,  the  plaintiff  had  delivered  to  the  defendants,  who 
were  common  carriers,  a  box  containing  plans  and  specifications, 
to  be  forwarded  to  a  committee,  at  a  distant  place,  who  had  of- 
fered a  premium  of  $500  to  the  successful  competitor,  for  the  best 
plans  for  a  public  building.  The  plaintiff's  drawings  were  so 
dehvered  to  be  transported  for  such  competition.  In  consequence 
of  the  defendants'  negligence,  they  were  not  delivered  at  their 
destination  until  after  the  premium  had  been  awarded.  There 
was  no  evidence,  on  the  part  of  the  plaintiff,  to  so  show  that 
there  was  any  probabihty  that  his  plans  would  be  adopted ;  and 
there  was  some  evidence  introduced  by  the  defendant  to  the  con- 
trary. On  this  ground,  it  was  held  that  the  plaintiff  was  en- 
titled to  only  nominal  damages.  But  it  was  held  that  such  proof 
was  admissible,  to  show  the  value  of  the  plaintiff's  opportunity  to 
compete ;  and  that  the  loss  of  this  was  the  direct  and  immediate 
effect  of  the  negligence  complained  of .^  Strong,  J.,  said :  "  It  is 
doubtless  true  that,  in  aU  actions  for  breach  of  contract,  the  loss 
or  injury  must  be  a  proximate  consequence  of  the  breach.  A  re- 
mote or  possible  loss  is  not  sufficient  for  compensation.  There 
is  no  measure  for  those  losses  which  have  no  direct  and  neces- 
sary connection  with  the  stipulations  of  the  contract,  or  which 
are  dependent  upon  contingencies  other  than  the  performance 
of  the  contract,  and  which  are,  therefore,  incapable  of  being 
estunated.  With  no  certainty  can  it  be  said,  that  such  losses 
are  attributable  to  the  wrongful  act  or  omission  of  him  who  has 
violated  his  engagement.  But,  on  the  other  hand,  the  loss  of 
profits  or  advantages  which  must  have  resulted  from  a  fulfil- 
ment of  the  contract,  may  be  compensated,  in  damages,  when 
they  are  the  direct  and  immediate  fruits  of  the  contract ;  and 
must,  therefore,  have  been  in  the  contemplation  of  the  parties 
when  it  was  made.  Applying  this  rule  to  the  present  case,  why 
was  not  the  loss  of  the  opportunity  to  compete  for  the  premium 
(whatever  may  have  been  its  value),  an  immediate  consequence 
of  the  breach  of  the  contract?  The  company  undertook  to 
transport  the  box  to  the  committee  appointed  to  award  the  pre- 

^ Watson  V.  Ambergate  R'y  Co.  15         -Adams  Exp.    Co.  v.  Egbert,    36 
Jul-.  448.  Pa.  St.  360. 


EEQUIRED    CEKTAIXTY   OF   DAMAGES.  125 

mium.  The  puqiose  of  the  contract  was  to  secure  to  the 
plaintiff  the  privilege  of  competition.  Certainly,  he  must  have  had 
that  in  contemplation,  and,  if  the  company  was  informed  of  the 
object  of  the  transmission,  the  loss  of  this  privilege  was  in  view 
of  both  parties  at  the  time  they  entered  into  the  contract.  But, 
whether  known  or  not  by  the  company,  the  loss  was  an  immedi- 
ate consequence  of  the  negligent  breach.  We  do  not  now  stop 
to  inquire  whether  the  defendants  can  be  held  liable  for  every 
consequence,  even  though  immediate,  which  cannot  reasonably 
be  supposed  to  have  been  in  the  contemplation  of  both  parties, 
at  the  time  they  made  the  contract,  as  the  probable  result  of  the 
breach  of  it.  Perhaps,  if  the  special  circumstances  under  which 
the  contract  was  made,  and  which  occasioned  special  and  unu- 
sual injury  to  attend  its  breach,  were  unknown  to  the  party 
which  broke  it,  they  could  not  be  held  to  make  compensation 
for  more  than  the  amount  of  injury  which  generally  results 
from  the  breach  of  such  contracts,  in  cases  unattended  by  any 
special  circumstances."  Again,  the  learned  judge  said :  "  Sup- 
pose the  engagement  of  the  company  had  been  directly  to  afford 
to  the  plaintiff  an  opportunity  to  compete  for  the  premium 
offered,  could  he,  for  the  breach  of  such  an  agreement,  recover 
more  than  nominal  damages,  without  any  proof  that  any  actual 
injury  had  resulted  from  the  breach  ?  We  think  not.  To  en- 
title a  plaintiff,  in  an  action  founded  on  a  contract,  to  recover 
more  than  nominal  damages,  for  its  breach,  there  must  always 
be  evidence  that  an  actual,  substantial  loss  or  injury,  has  been 
sustained,  unless  the  contract  itself  fm-nishes  a  guide  to  the 
measurement  of  the  damages  ;  and  even  when  there  is  some  such 
proof,  and  the  amount  is  uncertain,  courts  have  sometimes  di- 
rected the  jury  to  allow  the  smallest  sum  which  would  satisfy 
the  proof  .^  A  plaintiff  claims  compensation.  The  amount  of  that 
compensation  is  a  part  of  his  case.  Whether,  in  the  present  case, 
the  plaintiff  sustained  any  actual  injury,  depended  upon  the 
degi'ee  of  probabihty  there  was  that  he  would  be  a  successful 
competitor,  if  the  contract  had  not  been  broken.  If  his  plans 
were  entirely  defeated,  ...  it  cannot  be  claimed  that  he 
was  damaged.  He  introduced,  however,  no  evidence  to  show 
there  was  the  least  probabihty  that  the  premium  would  have 

'  Lawton  T.  Sweeny,  8  Jurist,  964;  Clanhess  v.  Perrey,  1  Camp.  8. 


126  COMPENSATION. 

been  awarded  to  him  had  his  plans  been  submitted  to  the  com- 
mittee in  time." 

The  fact  that  the  vahie  of  a  contract,  or  the  advantage  to  be 
derived  from  it,  is  contingent — that  is,  that  the  expected  advan- 
tage depends  on  the  concm-rence  of  circumstances  subsequently 
to  transpire,  and  which  may  by  possibility  not  happen,  is  not  an 
insuperable  objection  to  recovery  of  damages  for  such  loss. 
The  chance,  so  to  speak,  of  obtaining  that  advantage  by  per- 
formance of  the  contract,  and  the  conjunction  of  the  necessary 
subsequent  facts,  may  be  valuable.  The  nature  of  the  contin- 
gency must  be  considered.  If  it  is  purely  conjectural,  and  can 
not  be  reasonably  anticipated  to  happen  in  the  usual  course  of 
things,  it  is  too  uncertain.  There  must  be  proof  legally  tending 
to  prove  that  it  would  happen,  and  sufficient  to  satisfy  the  jury. 
The  chance  that  a  father  would  pay  a  son's  debt  to  procure  his 
release  fi'om  custody,  has  been  held  capable  of  estimation.^ 

Uncertain  raTiGATioN  of  breach  of  maeriage  PROivnsE. —  In 
assessing  damages  for  breach  of  a  promise  of  marriage,  it 
would  not  be  a  legitimate  subject  for  the  jury  to  consider  the 
consequences  to  the  plaintiff,  in  mitigation  of  damages,  of  mar- 
rying the  defendant  and  thereby  forming  an  unhappy  alliance, 
by  reason  of  a  want  of  that  love  and  affection  that  a  husband 
should  bear  his  wife.'^ 

Failure  to  provide  sinking  fttstd. —  The  damages  to  a  creditor 
for  the  failure  of  a  municipal  corporation  to  fulfil  its  contract 
to  provide  a  sinking  fund  as  security  for  the  debt,  have  been 
held  not  capable  in  their  nature  of  legal  computation  ;  that 
there  is  no  legal  standard  by  which  they  can  be  fixed ;  that  they 
are  shadowy,  uncertain,  and  speculative.^ 

'  Macre  v.  Clark,  L.  R.  1  C.  P.  403.         ^  Memphis  v.  Brown,  20  WaU.  289. 
2  Piper  V.  Kingsbury,  48  Vt.  480. 


elements  of  damage.  127 

Sectiojst  6. 

the  constituents  of  compensation,  or  elrments  of  damage. 

Principal  andinterest  on  viere  contracts  to  pay  vioney — Other  damages 
recoverable  where  other  objects  than  to  discharge  a  debt  —  For  breach  oj 
other  contracts,  gains  prevented,  and  losses  sustained —  What  may  be 
recovered  for  gains  prevented  —  For  total  breach,  the  value  of  the  con- 
tract, and  proportionately  for  partial  breach  —  What  may  be  recov- 
ered for  losses  sustained;  first,  direct  deprivation  of  money,  23roperty  or 
rights,  by  the  breach  —  Second,  for  i)reparation  to  pierform  and  part 
performance —  Tliird,  money  piaid  and  acts  don"-  to  obtain  the  object  of 
contract  lost  by  breach — Fourth,  necessary  payments  to  third  persons 
in  consequence  of  breach  —  Fifth,  labor  and  money  to  lessen  and  prevent 
damages  from  breach,  and  to  attain  object  of  contract  after  breach  — 
Elements  of  damage  for  personal  torts — Damages  for  breach  of  con- 
tract may  include  other  than  pecuniary  elements  —  Right  to  compen- 
sation for  tort  and  breach  of  contract  independent  of  motive  —  Distinc- 
tions made  for  bad  motive,  and  in  decision  of  uncertain  damages 
beticeen  actions  of  tort  and  upon  contract  —  Between  ivilful  and  inad- 
vertent confusion  of  goods —  Where  property  sued  for  improved  by 
wrongdoer — Distinctions  in  matter  of  proof — -Value  of  propiirty  as 
element  of  damage  and  interest. 

The  elementary  limitation  of  recovery  to  a  just  indemnity 
for  actual  injury,  estimated  upon  the  natural  and  proximate 
consequences  of  the  injurious  act,  fixes  a  logical  boundary  of 
redress  in  the  form  of  compensation,  and  furnishes  a  general 
test  by  which  any  particulars  may  be  included  or  rejected. 
Recovery  beyond  nominal  damages  requires  that  actual  injury 
be  shoAvn.  What  are  the  elements  of  injury  which  may  be 
compensated  ?  This  inquiry,  in  any  case,  is  a  legal  one  which 
must  be  determined  by  the  court ;  and  where  the  details  are 
capable  of  pecuniary  valuation,  the  law  affords  some  standard 
for  measuring  compensation  for  them. 

The  elements  of  damage  are  always  coiTelative  to  the  right 
violated  by  the  act  complained  of ;  and  the  amount  of  compen- 
sation, whether  measured  by  legal  rules,  or  referred  to  the  dis- 
cretion of  the  jury,  must  depend  on  the  nature  of  the  right,  and 
the  mode,  incidents  and  consequences,  of  the  violative  act. 

Each  party  to  a  contract  has  a  legal  right  to  performance  by 
the  other  according  to  its  legal  import  and  effect.  Any  default 
in  such  performance  is  a  violation  of  that  right.     The  injured 


128  COMrENSATION. 

party  is  entitled  to  a  measure  of  compensation  which  will  place 
him  in  as  good  condition  as  if  the  contract  had  been  fulfilled. 
In  other  words,  all  the  natural  and  proximate  results  of  the  act 
complained  of  wiU  be  considered,  with  a  view  to  giving  him 
compensation  for  all  gains  prevented  and  all  losses  sustained. 
The  particular  stipulations  of  the  contract  and  the  alleged 
breach  will  circumscribe  the  inquhy  ;  and  the  facts  constituting 
the  breach,  and  its  consequences,  will  constitute  its  subjects. 

1.  On  a  contract  for  the  mere  payment  of  money,  the  unpaid 
principal,  together  with  the  stipulated,  or  after  maturity,  the 
lawful  rate  of  interest,  is  the  measure  of  damages.  It  is  the 
invariable  measure  of  recovery  in  a  creditor's  action  against  his 
debtor.^  The  failure  to  pay  a  debt,  when  due,  may  disappoint 
the  creditor  and  embarrass  him  in  his  affairs  and  collateral  un- 
dertakings ;  he  may  consequentially  suffer  losses  for  which 
interest  is  a  very  inadequate  compensation  ;  but  such  losses  are 
remote,  and  do  not  result  alone  from  the  default  of  his  debtor. 
Money,  like  the  staples  of  commerce,  is,  in  legal  contemplation, 
always  in  market,  and  procurable  at  the  legal  rate  of  interest ; 
and  the  same  principle,  which  limits  a  disappointed  vendee's 
recovery,  against  his  defaulting  vendor,  to  the  market  value  of 
the  commodity,  which  is  the  subject  of  his  contract,  restricts  the 
creditor  to  the  principal  and  interest.  The  practical  difficulty 
to  a  creditor  of  borrowing  the  money,  where  the  debtor  is  with- 
holding; the  sum  wanted  which  he  owes,  and  that  of  a  vendee  to 
make  a  new  purchase  after  he  has  paid  the  defaulting  vendor 
for  the  goods  wanted,  is  the  same.  J^o  party's  condition,  in 
respect  to  the  measure  of  damages,  should  be  worse  for  having 
failed  in  his  engagement  to  a  person  whose  affairs  are  embar- 
rassed, than  if  it  had  been  made  with  one  in  prosperous  or 
affluent  circumstances.'^ 

Greater  daisiages  thajst  interest  for  failure  to  pat  money. — 
Where  the  obligation  to  pay  money,  however,  is  special,  and  has 
reference  to  other  objects  than  the  mere  discharge  of  a  debt,  as 
where  it  is  agreed  to  be  done  to  facilitate  trade,  and  to  maintain 

1  Fletcher  v.  Tayleur,  17  C.  B.  39;         ^Domat  B.  3  tit.  5,  §2,  art.  4;  Maa- 
Short  V.  Skipworth,   1  Brock,   103;      terton  v.  Mayor,  7  Hill,  61. 
Bender  v.  Fromberger,  4  DaU.  444. 


ELEMENTS   OF   DAMAGE.  129 

the  credit  of  the  promisee  in  a  foreign  country ;  to  talce  up 
commercial  paper ;  pay  taxes ;  discharge  liens ;  reheve  sureties ; 
or  for  any  other  supjjosahle  ulterior  object ;  damages  bej^ond 
interest  for  delay  of  papnent,  according  to  the  actual  injmy, 
may  be  recovered. 

A  banker  may  be  made  hable  for  damages,  not  measured  by 
interest,  for  refusing  to  pay  the  check  of  his  customer,  who  has 
provided  funds  subject  to  the  check.  The  credit  of  the  dra"U'er 
is  hkely  to  be  injm'ed  by  such  refusal.^  In  one  such  case  for 
refusal  to  pay  a  check  of  48?.,  the  jury  gave  a  verdict  for  500?. 
damages,  and  there  was  no  evidence  that  special  damages 
had  been  sustained.  This  was  deemed  excessive,  and  was  re- 
duced by  consent  to  200?.^  The  rule  of  Hadley  v.  Baxendale  is 
tipplied  to  such  cases.^ 

Banlters,  at  Liverpool,  by  letter  of  credit,  dehvered  to  a  cus- 
tomer, undertook  to  accept  drafts,  drawn  abroad,  to  be  paid  with 
his  money  deposited  for  that  purpose.  Before  maturity  they 
gave  notice  that  they  would  be  unable  to  pay  the  drafts  at 
maturity ;  and  the  customer  was  put  to  expense  of  a  commission 
to  another  party  to  take  up  the  bills ;  and  also  to  expense  of 
protesting  them ;  and  expense  of  telegrams.  These  were  held 
2)roper  elements  of  damage.*  In  another  case,  the  defendant's 
failm'e  to  meet  the  plaintiff's  drafts,  caused  a  suspension  of  the 
latter's  business  at  one  place,  injm-ed  it  at  another,  and  caused 
the  loss  of  a  valuable  agency ;  and  the  court  held  that  all  these 
losses  were  recoverable.^ 

Where  one  person  furnishes  money  to  another  to  discharge  an 
incumbrance  from  the  land  of  the  person  furnishing  the  money, 
and  the  person  undertaking  to  discharge  the  incumbrance  neg- 
lects to  do  it,  and  the  land  is  lost  to  the  owner  by  reason  of  the 
incumbrance,  the  measure  of  damages  may  be  the  money  fm'- 
nished  with  the  interest,  or  the  value  of  the  land  lost,  according 
to  circumstances.  If  the  land-owner  has  knowledge  of  the 
agent's  failure  in  time  to  redeem  the  land  himself,  his  damages 

■  Marzetti  v.  Williams,  1  B.  &  Ad.  v.  Royal  Bank  of  Liverpool,  L.  R.  5 

415.  Ex.  93. 

2Rolin  V.  Steward,    14  C.  B.  SOo;  ^Id. 

Boydv.  Fitt,  14  Ir.  C.  L.  43;  Larios  ^Prehn  v.  Royal  Bank  of  Liver- 

V.  Gurity,  L.  R.  5  C.  P.  445;  Prehu  pool,  supra. 

'  Boyd  V.  Fett,  supra. 
Vol.  I  — 9 


130  COMPENSATION. 

will  be  the  money  furnished  with  interest.  But  if  the  land- 
owner justly  relies  upon  his  agent,  to  whom  he  has  furnished 
money,  to  discharge  the  incumbrance,  and  the  land  is  lost  with- 
out his  knowledge,  and  solely  through  the  fault  of  the  agent, 
the  latter  will  be  liable  for  the  value  of  the  land  at  the  time  it 
is  lost.^ 

2.  For  hreach  of  other  contracts,  than  to  pay  money,  the  in- 
jured  party  is  entitled  to  compensation  for  gains  prevented  and 
losses  sustained.  The  gains  prevented  are  those  which  would 
accrue  to  the  contracting  parties  from  the  mutual  performance 
of  the  contract.  The  damages  for  a  total  breach  of  a  contract 
should  include  the  value  of  it  to  the  injured  party.  This  is 
generally  the  measure  of  damages.  There  are  some  exceptions, 
as  in  case  of  contracts  for  the  sale  of  land  where  title  unexpectedly 
cannot  be  made,  and  generally  on  covenants  for  title,  in  convey- 
ances of  real  estate.^  By  this  general  rule,  the  party  thus  in- 
jm'ed  by  a  total  breach,  is  entitled  to  recover  the  profits  of  the 
particular  contmct,  which  he  shows,  with  sufficient  certainty, 
would  have  accrued,  if  the  other  party  had  performed.  He  is 
entitled  to  recover  proportionately  for  a  partial  breach.  And  to 
ascertain  these  profits,  the  nature  and  the  special  pm-pose  of  the 
contract,  a  sub-contract,  or  other  subsidiary  and  dependent  ar- 
rangement, within  the  contemplation  of  the  parties  at  the  time 
of  contracting,  may  be  taken  into  consideration.^ 

>  Blood  V.  Wilkins,  43  Iowa,  565.  Me.  9;  Booth  v.  Spuyten  Duyvil  R. 

SFlureau  v.  ThornhiU,  3  W.  Bl.  M.  Co.  60  N.  Y.  487;  Cassidy  v.  Le 

1078;  Worthington  v.  Warrington,  Fevre,  45  N.  Y.  56,3;  Hexter  v.  Knox, 

8  C,  B.  134;  Buckley  v.  Dawson,  4  63  N.  Y.  561;  Shepard  v.  Milwaukee 

Ir.  C.  L.  N.  S.  311;  Sikes  v.  Wild,  1  Gas    L.    Co.  15  Wis.  318;    Frye  v. 

B.  &  S.  594;  Bain  v.  Fothergill,  L.  Maine  Cent.  R.  R.  Co.  67  Me.  414; 

R.  6  Ex.  59;  S.  C.  L.  R.  7  App.  Cases,  Fultz    v.    Wyckoff,    35     Ind.    321; 

158;  Baldwin  v.  Munn,  3  Wend.  399;  Holden  v.  Lake  Co.  53  N.  H.  552; 

Conger  v.  Weaver,  30  N.   Y.   140;  Coweta  Falls  M.   Co.  v.  Rogers,  19 

Pumpelly  v.  Phelps,   40    N.    Y.  60;  Ga.  416;   Fox  t.   Harding,  7  Cush. 

Sweem  v.  Steele,  5  Iowa,  353;  Drake  516;,  Fletcher  v.  Tayleur,  17  C.  B.  21; 

T.  Baker,  34  N.  J.  L.  358;  see  post,  Masterton  v.  Mayor,  7  Hill,  61;  Wal- 

Ch.  Vendor  and  Purchaser.  cott  v.  Mount,  86  N.  J.  L.  363;  Pas- 


« Morgan  v.  Hefler,  68  Me.  131 
Hadley  v.  Baxendale,  9  Exch.  341 
McHose  V.  Fidmer,  73  Pa.  St.  365 
Van  Arsdale  v.  Rundell,  83  111.  63 


senger  v.  Thornbum,  34  N.  Y.  634; 
Smith  V.  Chicago,  etc.  R.  R.  Co.  38 
Iowa,  518;  Van  Wyck  v.  AUen,  69 
N.  Y.   61;    Ferris  v.    Comstock,    33 


True  V.  Intei-national    Tel.    Co.    60      Conn.  513;  France  v.  Gaudet,  L.  R. 


ELEMENTS    OF    DA3IAGE.  131 

Losses  may  he  sustained  in  various  waj^s,  in  consequence  of  a 
breacli  of  contract,  aside  from  gains  prevented.  First,  a  loss 
may  consist  of  money,  property  or  valuable  rights,  which  may  Tje 
directly  talten  froin  the  injured  party  hy  the  breach.  A  servant, 
improperly  discharged  before  the  period  of  his  engagement  has 
expired,  and  unable  to  find  any  other  employment,  or  one  equally 
remunerative,  is  deprived,  by  such  dismissal,  of  the  right  to 
earn  the  stipulated  wages.  By  that  breach  of  contract  he  loses 
the  "whole,  or  a  part  of  what  he  was  entitled  to  earn  dm-ing  the 
term  he  was  engaged  for ;  and  he  is  entitled  to  recover  accord- 
ingly.^ An  agent  or  bailee,  who  by  breach  of  duty  converts 
his  principal's  property,  or  by  neglect  suffers  it  to  be  lost  or 
destroyed ;  or  by  failure  to  assert  his  rights,  or  doing  it  in  a 
careless  or  ineiRcient  manner,  subjects  him  to  loss,  must  respond 
in  damages  according  to  the  injury  thus  occasioned.^ 

Second,  losses  sustained  may  consist  of  labor  or  expenditures  in 
preparation  to  perform,  or  in  part  performance  of  the  contract, 
on  the  part  of  the  plaintiff . —  Where  a  contract  is  partly  per- 
formed by  one  x^arty,  and,  without  his  being  in  any  default,  the 
other,  then,  stops  him  and  prevents  further  performance,  such 
part  performance,  in  addition  to  the  profits  which  could  be 
made  by  completing  the  contract,  will  enter  mto  the  estimate  of 
damages  for  such  breach.  Should  a  vendor,  who  had  received 
part  papnent  for  goods,  bargained  and  sold,  refuse  to  go  on 

6  Q.  B.  199;  Messmore  v.  N.  Y.  Shot,         « White  v.  Smith,  54   N.  Y.  523; 

etc.  Co.  40  N.  Y.  423;  Richmond  v.  Dodge  v.  Perkins,  9  Pick,  368;  Clark 

Dubuque,  etc.  E.  R.  Co.   40  Iowa,  v.  Moody,  17  Mass.  145;  Frothing- 

264;  Ward  v.  N.  Y.  Cent.  R.  R.  Co.  ham  v.  Everton,  13  N.  H.  339;  Web- 

47  N.   Y.   29;  Sisson  v.    Cleveland,  ster  v.  Taslit,  7  T.  R.  157;  Rundle  v. 

etc.  R.  R.  Co.  14  Mich,  489;  Burrill  Moore,  3  Johns.  Cas.  36,  530;  Blot  v. 

V.  N.  Y.  etc.  Co.  14  Mich.  34;  May-  Boiceau,   3  N.  Y.  78;    Maynard   v. 

nard  v.  Pease,  99  Mass.  555;  Bell  v.  Pease,  99  Mass.  555;   The  Stearine, 

Cunningham,  3  Pet.  69;  Farwell  v.  etc.  Co.  v,  Heintzmann,  17  C.  B.  N. 

Price,  30  Mo.  587.  S.  56;  Allen  v.  Suydam,  20  Wend. 

'Sutherland  v,  Wyer,  67  Me.  64;  321;  Bridge  v.  Mason,  45  Barb.  37; 

GiflPord  V,  Waters,  67  N.  Y.  80;  Gil-  Mallough   v.  Barber,  4  Camp.  150; 

lis  V.  Space,  63  Barb.  177;  Emerson  Perkins  v.  Washington   Ins.   Co.  4 

V.   Howland,   1   Mason,   45;    Howe  Com.   645;  Evans  v.   Root,  7  N.  Y. 

Sewing  M.  Co.  v.  Bryson,  44  Iowa,  186;  Scott  v.  Rogers,  31  N.  Y.  684; 

159;  Williams  v.  Anderson,  9  Minn.  Nickerson  v.  Soesman,  98  Mass.  364; 

50;    WilUams   v.  Chicago  Coal  Co.  Trinidad  Nat.  Bank  v.  Denver  Xat. 

60  lU.  149;  Smith  v.  Thompson,  8  C.  Bank,  4  Dill.  290;  DeTastitt  v.  Cron- 

B.  44.  sillat,  2  Wash.  C.  C.  132. 


132 


COMPENSATION. 


witli  the  contract,  the  vendee  would,  be  entitled  to  recover,  in 
addition  to  the  profits,  in  the  excess  of  the  value  of  the  goods 
above  the  contract  price,  the  amount  which  he  had  paid  towards 
the  latter ;  for  the  same  reason  which  supports  his  claim,  where 
lie  has  paid  the  whole  pm^chase  price,  for  the  value  of  the  prop- 
erty.^ If  a  contract  for  particular  work  is  partly  performetl, 
and  the  employer  then  puts  an  end  to  the  undertaking,  recovery 
may  be  had  against  him,  not  only  for  the  profits  the  contractor 
could  have  made  by  performing  the  contract,  but  compensation 
also  for  so  much  as  he  has  done  towards  performance.^  Prepara- 
tions for  performance,  which  were  a  necessary  prehminary  to 
performance,  or  within  the  contemplation  of  the  parties  as 
necessary,  in  the  particular  case,  rest  upon  the  same  principle.^ 


'  Copper  Co.  v.  Copper  Mining  Co. 
33  Vt.  92;  Woodbury  v.  Jones,  44  N. 
H.  209;  Owen  v.  Routh,  14  C.  B.  327; 
Bush  V.  Canfield,  2  Conn.  485;  Loder 
V.  Kekule,  8  C.  B.  N.  S.  128;  Smith 
V.  Beriy,  18  Me.  212;  Berry  v.  Dwi- 
nell,  44  Me.  255;  Wyman  v.  Ameri- 
can P.  Co.  8  Cush.  168;  Pinkerton  v. 
M.  &  L.  R.  R.  42  N.  H.  424. 

sMcCulloughv.  Baker,  47  Mo.  401; 
Jones  V.  Woodbury,  11  B.  Mon.  167; 
Derby  v.  Johnson.  21  Vt.  17;  Cham- 
berlain V.  Scott,  33  Vt.  80;  Fried- 
lander  V.  Pugh,  43  Miss.  Ill;  Paisley 
V.  Anderson,  7  W.  Va.  302;  Uanforth 
V.  Walker,  37  Vt.  239. 

^Masterton  v.  Mayor,  7  Hill,  61. 
In  this  case,  the  marble  at  the 
quarry  was  taken  into  account 
in  the  estimate  of  damages.  In 
Nurse  v.  Barnes,  T.  Raym.  77,  the 
defendant,  in  consideration  of  lOL, 
promised  to  demise  a  mill  to  the 
plaintiff,  who  laid  in  a  large  stock  to 
employ  it,  which  he  lost,  because 
the  defendant  refused  to  give  him 
possession.  A  verdict  of  500Z.  was 
approved.  The  stock  so  procured 
may  more  properly  be  classed  as  an 
expenditure  on  the  faith  of  perform- 
ance by  the  other  party.  See  post, 
p.  133.  But  the  allowance  of  a  loss  for 
Buch  expenditures  rests  on  a  similar 


principle.  In  Skinner  v.  Tinker,  34 
Barb.  333,  an  action  was  brought  to 
recover  damages  for  breach  of  a 
contract  for  a  partnership.  The 
plaintiff,  a  dentist  of  Brooklyn,  and 
the  defendant,  a  dentist  of  Havana, 
Cuba,  entered  into  an  agreement,  in 
writing,  at  the  letter  place,  in 
IMarch,  1853,  by  which  they  were  to 
do  a  joint  business,  as  dentists,  at 
Havana,  to  begin  in  October  or  No- 
vember, following,  if  the  plaintiff 
should  present  himself.  The  agree- 
ment was  silent  as  to  the  duration 
of  the  partnership.  Thereupon,  the 
plaintiff  sold  out  his  business  at 
Brooklyn,  and  entered  into  bonds 
not  to  resume  practice  there,  and 
made  aU  preparations  for  carrying 
out  his  agreement.  In  May,  he 
received  a  letter  from  the  defendant, 
declining  to  carry  out  the  agree- 
ment, on  his  part.  On  the  trial,  the 
plaintiff  proved  these  facts,  and  his 
readiness  and  an  offer  to  fulfil,  and 
recovered  a  verdict  for  $4,000.  On 
appeal,  Ingraham,  J. ,  said :  ' '  Per- 
formance, on  the  part  of  the  plaint- 
iff, by  appearing  in  Havana,  in 
October  or  November,  as  stated  in 
the  contract,  was  unnecessary;  be- 
cause the  defendant  had  given  no- 
tice of  his  determination  not  to  form 


ELEMENTS    OF   DAJSIAGE. 


133 


TJiird,  such  losses  may  consist  of  expenditures  made  hj  one 
party  to  a  contract  a.nd  damages  from  his  oion  acts  done  on  the 
faith  of  its  heing  ]}erform.ed  ly  the  other,  in  furtherance  of  the 


a  partnership.  The  plaintiff  was 
then  entitled  to  damages,  if  any 
were  sustained,  up  to  that  time,  but 
not  to  prospective  damages." 

Johnson  v.  Arnold,  3  Cush.  46, 
was  an  action  to  recover  damages 
for  the  breach  of  a  special  contract 
by  wliich,  upon  certain  terms,  the 
defendant  agi-eed  to  furnish  and 
keep  the  plaintiff  supplied  with  a 
stock  of  goods  for  carrying  on  busi- 
ness in  the  defendant's  store,  in  an- 
other state,  and  the  plaintiff  under- 
took to  carry  it  on  for  a  share  of  the 
profits,  for  a  given  term.  It  was 
held  that  in  estimating  the  damages, 
it  was  competent  to  allow  the 
plaintiff  compensation  for  the  loss 
of  his  time,  and  for  the  expenses  of 
removing  his  family  to  and  from 
the  place,  where  the  business  was  to 
be  carried  on.  The  case  of  Noble  v. 
Ames  M.  Co.  113  Mass.  493,  is  ap- 
parently not  consistent  with  the 
principle  stated.  The  defendant, 
doing  business  in  Massachusetts, 
wrote  the  plaintiff  in  the  Sandwich 
Islands:  "I  am  ready  to  offer  you  a 
foreman's  situation  at  these  works 
as  soon  as  you  may  get  here;  pay, 
$1,500  a  year."  The  plaintiff  ac- 
cepted the  proposition  and  came, 
but  the  defendant  refused  to  employ 
him.  The  court  rejected  the  claim 
of  compensation  for  the  time  con- 
sumed, and  expenses  in  coming 
from  the  Sandwich  Islands,  on  the 
ground  that  those  items  preceded 
the  taking  effect  of  the  contract, 
and  w^ere  not  in  part  performance. 
Morton,  J.,  said:  "All  the  plaintiff 
can  claim  is  that  he  sliould  be  placed 
in  as  good  condition  as  he  would 
have  been  in  if  the  contract  had 
been  performed.     But    the    ruling 


(allowing  these  items)  puts  him  in 
a  better  condition."  On  the  trial 
those  were  the  only  items  claimed.  It 
was  stated  by  plaintiff's  counsel  that 
no  claim  was  made  for  business  sac- 
rifices in  leaving  the  islands  and 
coming  to  defendant  to  perform  the 
contract,  and  none  for  any  loss  of 
time,  or  other  loss  or  damage  after 
the  refusal  of  the  defendant  to  em- 
ploy him. 

In  Smith  v.  Sherman,  4  Cush.  408, 
it  was  held  that  loss  of  time,  and 
expenses  incurred,  in  preparation 
for  marriage,  are  directly  incidental 
to  the  breach  of  the  marriage 
promise.  In  Durkee  v.  Mott,  8 
Barb.  423,  on  a  contract  to  pay  a 
certain  price  for  rafting  logs  which 
the  defendant  put  an  end  to  before 
the  labor  began,  it  was  held  the 
plaintiff  might  recover  the  immedi- 
ate loss  in  preparing  to  perform  the 
contract,  in  providing  men  for  that 
jDurpose. 

Woodbury  v.  Jones,  44  N.  H.  806, 
affirms  the  same  doctrine.  There  the 
defendant  proposed  to  the  plaintiff, 
who  was  then  living  in  Minnesota, 
that  if  he  would  come  back  to  N. 
B. ,  he  might  move  into  the  defend- 
ant's house,  and  he  would  give  the 
plaintiff  and  his  wife  a  year's  board, 
and  he  might  carry  on  the  defend- 
ant's farm  on  any  terms  he  might 
elect.  He  accepted,  and  came  back, 
and  the  defendant  failed  to  make 
his  offer  good;  and  the  court  held 
that  it  was  competent  for  the  jury 
to  take  into  consideration,  in  assess- 
ing the  damages,  the  expenses  of  re- 
moving to  N.  B. 

In  an  action,  against  the  proprie- 
tor of  a  school,  for  the  breach  of  a 
contract  to  employ  the  plaintiff  as 


134 


COMPENSATION 


object  for'  wJilch  the  contract  jpurjyorts  to  he  made,  or  the  object 
which  was  in  the  contemplation  of  the  parties  at  the  time  of 
contracting} 

Fourth,  such  losses  may  consist  of  sums  necessarily  paid  to 
third  persons,  or  of  sums  recovered  and  expenses  incurred  in 
actions  brought  by  third  persons,  in  consequence  of  the  defend- 
ants breach  of  contract.  They  are  those  losses  which  may 
result  from  suretyship,  or  the  breach  of  any  duty  or  obligation 
of  indemnity.^ 


a  teacher,  made  for  her  by  her 
father  during  her  absence  in  Europe, 
where  she  was  travehng  with  her 
mother,  the  plaintiff  was  held  not 
entitled  to  recover,  as  part  of  her 
damages,  the  expenses  of  her  jour- 
ney home,  it  not  appearing  that 
Buch  expenses  were  incurred  in  con- 
sequence of  the  contract,  or  were  in 
the  contemplation  of  the  parties 
when  it  was  made.  Benzeger  v. 
Miller,  50  Ala.  206.  See  Williams 
V.  Olephant,  3  Ind.  271;  Bulkley  v. 
United  States,  19  WaU.  37;  Dillon 
V.  Anderson,  43  N.  Y.  231;  Hosmer 
V.  Wilson,  7  Mich.  294. 

•Dean  v.  White,  5  Iowa,  266; 
Grand  Tower  Co.  v.  Phillips,  23 
WaU.  471;  Driggs  v.  Dwight,  17 
Wend.  71;  Bonuey  v.  Hopkinson,  1 
L.  T.  N.  S.  53;  Smith  v.  Green,  1  C. 
P.  D.  92;  Randall  v.  Newton,  2  Q. 
B.  D.  102;  LeffingweU  v.  Elliott,  10 
Pick.  204;  Milburn  v.  Belloni,  39  N. 
Y.  53;  Thoms  v.  Dingley,  70  Me. 
100;  Randall  v.  Raper,  E.  B.  &  E.  84; 
Barradale  v.  Branton,  8  Taunt.  535; 
Brown  v.  Edgington,  2  M.  &  G.  279; 
Knowles  v.  Nunus.  14  L.  T.  N.  S.  592; 
French  v.  Vining,  102  Mass.  132; 
Johnson  v.  Blank's  Ex"r,  34  Mo.  255; 
Rowland's  Adm.  v.  Shelton,  25  Ala. 
N.  S.  217;  Ferris  v.  Comstock,  33 
Conn.  513;  ZuUer  v.  Rogers,  7  Hun, 
640;  Fiskv.  Tank,  12  Wis.  376;  Reg- 
gio  V.  Braggiotti,  7  Cush.  lOG;  Jetter 
V.  Glenn,  9  Rich.  L.  374. 


2  French  v.  Parish,  14  N.  H.  496; 
Trustees  of  Newburgh  v.  Gallatian, 
4  Cow.  340;  Brooklj^n  v.  Brooklyn 
City  R.  R.  Co.  57  Barb.  497;  Hold- 
gate  V.  Clark,  10  Wend.  215;  Lin- 
cohi  V.  Blanchard,  17  Vt.  464;  Kittle 
V.  Lipe,  6  Barb.  467;  Chamber- 
lain V.  Godfrey,  36  Vt.  380;  West- 
ervelt  v.  Smith,  2  Duer,  449;  lUies 
V.  Fitzgerald,  11  Tex.  417:  Braman 
V.  Dowse,  12  Cush.  227;  Spear  v. 
Stacy,  26  Vt.  61;  Hallock  v.  Belcher, 
42  Barb.  199;  Howard  v.  Lovegrove, 
23  L.  T.  N.  S.  396;  40  L.  J.  Exch.  13; 
L.  R.  6  Exch,  43;  Finckle  v.  Evers, 
25  Ohio  St.  82;  Jarvis  v.  Sewall,  40 
Barb.  449;  Webb  v.  Pond,  19  Wend. 
423;  Rockfellow  v.  Donnelly,  8  Cow. 
623;  Chase  v.  Hinman,  8  Wend.  452; 
Warwick  v.  Richardson,  10  M.  &  W. 
284;  Gerrish  v.  Smyth,  10  Allen,  303; 
Roy  V.  Clemens,  6  Leigh,  600;  Kip 
V.  Brigham,  6  John.  158;  Cotter  v. 
Morgan's  Adm.  12  B.  Mon.  278;  The 
Mayor  of  Troy  v.  Troy,  etc.  R.  R. 
Co.  3  Lans.  270;  Inhabitants  of  Low- 
eU  V.  Boston,  etc.  R.  R.  Co.  23  Pick. 
24;  Ba3^ward  v.  Harrity,  1  Houst. 
200;  Robbins  v.  Chicago,  4  Wall.  657; 
Crawford  v.  Turk,  24  Gratt.  176; 
Doxbury  v.  Vermont  C.  etc.  R.  R. 
Co.  26  Vt.  751;  Annetfc  v.  Terry,  35 
N.  Y.  256;  Thomas  v.  Hubbell,  35  N. 
Y.  120;  Binsse  v.  Wood,  37  N.  Y. 
526;  Armitage  v.  Pulver,  37  N.  Y. 
494;  Howe  v.  Buffalo,  etc.  R.  R.  Co. 
37  N.  Y.  297;  Spalding  v.  Oakes,  42 


ELEMENTS    OF    DAMAGE.  135 

In  such  cases,  the  practical  question  ^v]R  always  be  what  the 
plaintiff  was  obhged  or  autliorized  to  pay,  both  in  respect  to  the 
principal,  and  incidental  costs  or  expenses.  If  there  has  been 
a  voluntary  payment  by  the  indemnified  party,  or  a  compulsory 
payment  resulting  from  a  suit,  by  the  result  of  which  the  in- 
demnitor is  not  bound  by  his  contract,  or  in  consequence  of 
notice  to  defend,  the  question  of  the  habihty  of  the  indemnified 
party  to  make  such  payment,  is  open  in  his  action  for  indemnity.^ 
Where  there  is  an  express  indemnity  against  the  result  of  a 
particular  suit,  whether  the  indemnitor  is  a  party  or  not,  the 
judgment  binds  him  for  the  purposes  of  that  contract.^  But 
under  a  general  covenant  of  indemnity  against  suits,  the  cov- 
enantor has  a  right  to  defend,  either  in  the  action  against  the 
indemnified  party,  or  in  the  latter's  action  upon  the  covenant 
of  indemnity.  There  is  a  marked  distinction  between  cove- 
nants which  stipulate  against  the  consequences  of  a  suit,  and 
those  which  contain  no  such  undertaking.  In  the  latter  class, 
the  judgment  is  res  inter  alios  acta,  and  proves  nothing,  except 
rein  ijpsani,  against  the  indemnitor,  unless  he  has  had  notice  and 
an  opportunity  to  defend.  The  want  of  notice  does  not  go  to 
the  cause  of  action ;  the  judgment  is  jprima  facie  evidence  only 
against  the  indemnitor,  and  he  is  at  hberty  to  defend  against 
the  demand  on  which  it  is  founded.^  If  notice  is  expressly  stipu- 
lated for,  the  want  of  it  wiU  defeat  the  action.* 

Vt.  343;    Chamberlain  v.  Beller,  18  ^Patton  v.  Caldwell,  1  Dall.  419 

N.  Y.  115;  Stone  v.  Hooker,  9  Cow.  Rapelye    v.    Prince,    4    Hill,     119 

154;  Scott  V.   Tyler,   14  Barb.    202;  Thomas  v.  HubbeU,   15  N.  Y.  405 

Bridgeport  F.  &  M.  Ins.  Co.  v.  Wil-  Chamberlain    v.    Godfrey,    36    Vt. 

son,  34  N.  Y.  275;  Proprietors  of  L.  380. 

&  C.  V.  LoweU  Horse  R.  R.  Co.  109  ^  Bridgeport  Ins.  Co.  v.  Wilson,  34 

Mass.  221;   Briggs  v.  Boyd,  37  Vt.  N.  Y.  275;  Smith  v.  Compton,  3  B. 

534;  Colbum  v.  Pomeroy,  44  N.  H.  &  Ad.  407;  Reggio  v.  Braggiotti,  7 

19;  Thomas  v.  Beckman,  1  B.  Men.  Cush.    IGG;    Marltalet  v.    Clary,    20 

31;  Robertson  v.  Morgan's  Adm.  3  B.  Ai-k.  251;  Boyd  v,  Whitfield,  19  Ark. 

Mon.  309;  Littleton  v.  Richardson,  447;  Collingwood  v.  Irwin,  3  Watts, 

32  N.  H.  59;  Love  v.  Gibson,  3  Fla.  306;  Paul  v.  Witman,  3  W.  &S.  407; 

598;  French  v.  Parish,  14  N.  H.  496.  Pitkin  v.  Leavitt,  13  Vt.  379;  Train 

'  Douglass  V.  Howland,  24  Wend.  v.   Gold,   5  Pick.    380;   Baynard  v. 

35;  Lee  v.  Clark,  1  Hill,  56;  Duffield  Harrity,  1  Houst.  200. 

V.  Scott,  3  T.  R.  374;  Aberdeen  v.  ^  Bridgeport    Ins.  Co.  v.   Wilson, 

Blackmar,  6  Hill,  324;   Rapelye  v.  supra. 
Prince,  4  Hill,  119. 


136  COMPENSATION. 

As  to  the  right  to  costs  and  expenses  of  defending  a  former 
suit,  brought  to  enforce  a  liability,  against  which  there  is  an 
agreement  or  duty  to  indemnify,  there  is  some  conflict  of  de- 
cision. If  a  surety  for  a  liquidated  debt  is  sued  upon  it,  he  is 
not  bound  to  pay  it  to  save  costs ;  and  he  may  recover  of  the 
principal  the  costs  which  he  is  compelled  to  pay  a,s  incident  to 
a  default  judgment ;  in  addition,  the  sum  he  is  obhged  to  pay  of 
the  debt.^ 

And  where  the  action  is  founded  on  a  disputable  liability  or 
an  unliquidated  demand,  the  rule  in  England  and  generally  in 
this  country,  allows  the  surety  or  indemnified  party  to  give 
notice  of  the  suit  to  the  party  ultimately  liable,  and  abide  his 
directions ;  if  he  gives  none,  to  make  no  defense ;  or,  if  the  facts 
are  such  as  to  render  some  defense  reasonable  and  judicious,  and 
there  is  a  probability  of  success,  he  is  at  liberty  to  defend ;  and 
such  costs  and  expenses  as  are  reasonable  and  in  good  faith  so 
incurred,  he  will  be  entitled  to  recover  as  part  of  his  indemnity. 
He  will  be  entitled  not  only  to  recover  the  costs  taxed  against 
him  by  the  prevailing  adverse  party,  but  the  costs  of  his  defense.^ 

A  man  has  no  right,  merely  because  he  has  an  indemnity,  to 
defend  a  hopeless  action,  and  put  the  person  guarantying  to 
useless  expense.^  The  rule  formerly  laid  down  was,  that  if  the 
defendant,  in  the  first  action,  placed  the  facts  before  the  person 
whom  he  sought  ultimately  to  charge,  and  that  person  declined 
to  intervene,  and  left  him  to  take  his  own  course,  it  would  be  a 
question  for  the  jury,  whether  it  was  reasonable  to  defend,  or 

'Hulett  V.  Soullard,  26  Vt.  295;  Co.  2G  Vt.  751;  Smith  v.  Compton,  3 

Kemp  V.  Finden,  13  M.  &  W.  421;  B.  &  Ad.  407;  Pitkin  v.  Leavitt,  13 

Ex  parte  MarshaU,  1  Atk.  262;  Baker  Vt.  379;  Hayden  v.  Cabot,  17  Mass. 

V.  Martin,  3  Barb.  634;  Elwood  v.  169;  Wynn  v.  Brooke,  5  Pi,awle,  106; 

Deifendorf,  5  Barb.  412;  Blenden  v.  N.  Haven,  etc.  N.  H.  Co.  v.  Hayden, 

Charles,    7    Bing.   346;    Holmes    v.  117  Mass.  433;  Bonny  v.  Seeley,  3 

Weed,  24  Barb.  546;  Wynn  V.Brooke,  Wend.  481;  Howard  v.  Livegrove, 

5  Eawle,  106;  McKee  v.  Campbell,  L.  R.  6  Exch.  43;   Dubois  v.   Her- 

27  Mich.  497;  Wright  v.  Whiting,  40  niance,  56  N.  Y.  673;  Ottumwa  v. 

Barb.  210;  Wallace  v.   Gilchrist,  24  Parks,  43  Iowa,  119:  Baxendale  v. 

Up.  Can.  C.  P.  40;  Craig  v,  Craig,  5  London,    etc.   E.   E.    Co.   L.   R.    10 

Eawle,   91;  Robertson  v.   Morgan's  Exch.  35;  Collen  v.  Wright,  7  El.  & 

Adm.  3  B.  Mon.  307;  Coulter  v.  Mor-  Bl.  301;  Westfield  v.  Mayo,  123  Mass. 

gans  Adm.  13  B.  Mon.  378;  see  Pierce  100. 
V.  Williams,  L.  J.  Exch.  333.  ^QjUett  v.  Rippon,  1  M.  &  W.  406. 

^Duxbury  v.  Vermont  C.    R.   E. 


ELEMENTS    OF   DAMAGE.  137 

whether  the  defense  was  conducted  in  a  reasonable  manner. 
And,  in  deciding  that  question,  the  jury  would  have  to  consider 
whether  it  was  more  prudent  to  settle  the  matter  by  compro- 
mise, or  pay  the  money  into  court,  or  let  judgment  go  by  de- 
fault.' And  this  is  still  probably  the  law.  An  agent  or  surety, 
or  one  expressly  indemnified  in  respect  to  the  liability  sought  by 
action  to  be  fixed  on  him,  who  relies  on  the  indemnity  for 
security  against  loss,  has  no  personal  interest  to  defend,  where  he 
can  connect  the  indemnitor  with  that  action,  so  as  to  conclude 
him.  But  where  notice  cannot  be  given,  or,  for  any  reason,  is 
omitted,  the  defendant,  in  an  action,  who  depends  on  another 
for  indemnity  against  its  results,  must,  necessarily,  so  far  defend 
as  to  olitain  the  best  practicable  assurance  that  the  amount, 
which  he  pays,  he  will  have  a  legal  right  to  have  reimbm'sed. 

Municipal  corporations,  charged  with  the  duty  of  keeping 
pubhc  ways  in  repair,  have  a  right  of  indemnity  against  parties 
contracting  to  joerfonn  this  duty,  who  fail  to  fulfil ;  and  against 
parties  who,  by  abuse  of  a  license,  or  tortiously,  put  such  ways 
out  of  repair,  when  such  corporations  have  been  compelled  to 
pay  damages  to  some  person  injm^ed  in  consequence  of  such 
defect  or  want  of  repair.^ 

The  corporation  not  being  in  jpa/ri  delicto,  are  not  subject  to 
the  principle  which  excludes  contribution  or  indemnity  between 
wrongdoers  ;  and  they  have  a  right  of  recovery  over  against  the 
party  by  whose  fault  the  injmy  was  suffered.  "Where  notice 
has  been  given  to  the  person  primarily  at  fault,  to  take  upon 
Mmself  the  defense,  he  is  bound,  by  the  judgment,  as  to  the 
damages  paid  and  costs.^  In  such  cases,  the  demands  for  dam- 
ages are  unliquidated,  and  generally  disputable,  and  a  defense 

'Mayue  on    Dam.    74;     Mors    le  H.   59;  Proprietors  of  L.    &  C.   v. 

Blanch  v.  Wilson,  L.  R.  8  C.  P.  227.  LoweU  H.  R.  R.  Co.  109  Mass.  231. 

2  Chicago  V.  Robbins,  2  Black.  418;  ^  i(j_  j^  city  of  Ottumwa  v.  Parks, 

S.  C.  4  Wall.  657;  Woburn  v.  Hen-  supra,  wliere  the  party,  sought  to  be 

shaw,  101  Mass.  193;  Stoughton  v.  made  liable  to  the  city,  assumed  the 

Porter,   13    Allen,    191;    Boston    v.  defense  of  the  action  against   the 

Worthington,    10    Gray,  496;  Low-  cit}',  the  taxable  costs  of  that  action 

ell  V.  Boston,  etc.  R.  R.  Co.  23  Pick,  were  allowed,  so  far  as  they  were 

24;  Brooklyn   v.  Brooklyn  City  R.  paid  by  the  city;  but  the  costs  of  an 

R.    Co.  47  N.    Y.    475;   City  of    Ot-  appeal  were  disallowed,  there  being 

tumwaT.  Parks,  43  Iowa,  119;  Dux-  no  evidence    that    the  ajjpeal  was 

bury  V.  Vt.  Cent.  R.  R.  Co.  26  Vt.  taken  at  the  defendant's  request. 
751;  Littleton  v.  Richardson,  32  N. 


138  COMPENSATION. 

would  be  proper  and  judicious,  whether  the  party  ultimately 
liable  has  notice,  and  assumes  the  defense,  or  not.  The  costs 
taxed  against  the  corporation,  where  a  reasonable  defense  is  made, 
in  case  of  recovery,  and  the  expense  of  the  defense,  including 
counsel  fees,  are  proper  items  of  damage,  for  which  it  may  clahu 
indemnity.  They  are  among  the  direct  consequences  of  the 
defendant's  fault,  and  the  breach  of  the  imphed  promise  or  duty 
to  save  harmless. 

In  a  Massachusetts  case,^  Lord,  J.,  said :  "  The  difficulty  is 
not  in  stating  the  rule  of  damages,  but  in  the  determining 
whether,  in  the  particular  case,  the  damages  claimed  are  within 
the  rule.  l!^atural  and  necessary  consequences  are  subjects  of 
damages ;  remote,  uncertain  and  contingent,  consequences  are 
not.  Whether  counsel  fees  are  natural  or  necessary,  or  remote 
and  contingent,  in  the  particular  case,  we  thinli  may  be  de- 
termined upon  satisfactory  principles ;  and,  as  a  general  rule, 
when  a  party  is  called  upon  to  defend  a  suit,  founded  upon  a 
wrong  for  which  he  is  held  responsible  in  law,  without  mis- 
feasance on  his  part,  but  because  of  the  wrongful  act  of  another, 
against  whom  he  had  a  remedy  over,  counsel  fees  are  the  natu- 
ral and  reasonably  necessary  consequence  of  the. wrongful  act 
of  the  other,  if  he  has  notified  the  other  to  appear  and  defend 
the  suit.  When,  however,  the  claim  against  him  is  upon  his 
own  contract,  or  for  his  own  misfeasance,  though  he  may  have 
a  remedy  against  another,  and  the  damages  recoverable  may  be 
the  same  as  the  amount  of  the  judgment  recovered  against  him- 
self, counsel  fees  paid  in  defense  of  the  suit  against  himself  are  not 
recoverable."  It  appears  to  the  writer  that  such  expenses  being 
recognized  as  not  remote  and  contingent,  the  test  here  given  for 
their  allowance  or  rejection,  is  not  sound.  They  were  allowed 
in  that  case,  the  plaintiff,  as  a  municipal  corporation,  having  de- 
fended a  suit  for  damages,  brought  against  it  for  a  defect  of  a 
sidewalk,  caused  by  the  defendant ;  but,  by  the  rule  laid  down, 
an  innocent  agent,  who  does  at  the  request  of  his  principal 
a  wrongful  and  injurious  act,  and  being  sued  therefor,  would 
have  no  recourse  for  fees  of  counsel  employed  to  defend  that 
afetion.'^    And  yet,  in  this  opinion,  the  learned   judge  says: 

'Westfield  v.  Mayo,  123  Mass.  100.      Braggiotti,  7  Cush.  16G,  tlie  defend- 

^  See  Howe  v.  Buffalo,  etc.  R.  R.      ant  sold  to  the  plaintiff  an  article 

Co.   37  N.   Y.   297.      In  Reggio  v.      which  he  warranted  to  be  one  known 


ELEMENTS    OF    DAMAGE, 


139 


"  "Within  this  rule,  a  master,  who  is  immediately  responsible  for 
the  wrongful  acts  of  a  servant,  though  there  is  no  misfeasance 
on  his  part,  might  recover  against  such  servant,  not  only  the 
amount  of  the  judgment  recovered  against  him,  but  his  reason- 
able expenses,  including  counsel  fees,  if  notified  to  defend  the 
suit."  Where  there  is  an  imphed  or  express  indemnity  which 
covers  the  consequences  of  being  sued  and  having  to  defend  an 
action,  all  the  usual  concomitants  of  such  a  situation  are  neces- 
sarily within  the  contemplation  of  the  parties ;  and  if  there  is 
no  objection  of  improvidence  or  bad  faith,  the  expense  of  coun- 
sel is  obviously  as  proper  to  be  allowed  as  that  of  witnesses,  or 
the  services  of  the  clerk  of  the  court  or  the  sheriif .  Davis,  J.,^ 
said,  speaking  generally :  "  All  the  cases  recognize  fully  the  ha- 
bihty  of  the  principal  where  the  relation  of  master  and  servant, 
or  principal  and  agent,  exists ;  but  there  is  a  conflict  of  author- 
ity in  fixing  the  proper  degree  of  responsibility  where  an 
independent  contractor  intervenes."  ^ 

In  cases  of  express  indemnity,  or  where  there  is  a  duty  of 
that  nature,  springing  from  these  relations,  the  obligation  is 


in  commerce  as  opium,  Avith  a  view 
of  its  being  sold  as  such;  but  it  was 
not  opium,  or  of  any  value;  the 
plaintiff  having  sold  with  like  war- 
ranty, relying  on  the  defendant's 
warranty,  had  been  sued  by  his 
vendee,  and  compelled  to  pay  dam- 
ages and  costs;  he  gave  the  defend- 
ant notice  of  that  suit,  and  requested 
him  to  defend  it,  and  incurred  large 
expenses  in  and  about  that  suit.  In 
that  case  Shaw,  C.  J.,  said:  "As 
they  (the  plaintiffs)  gave  notice  to 
the  defendants  of  the  pendency  of 
the  first  action,  they  are  entitled  to 
recover  their  taxable  costs.  See 
Coolidge  V.  Brigham,  5  Met.  G8.  But 
the  counsel  fees  cannot  be  allowed. 
They  are  expenses  incurred  by  the 
party  for  his  own  satisfaction,  and 
they  vary  so  much  with  the  charac- 
ter and  distinction  of  the  counsel, 
that  it  would  be  dangerous  to  per- 
mit him  to  impose  such  a  charge 
upon    an   opponent;    and    the    law 


measures  the  expenses  incurred  in 
the  management  of  a  suit  by  the 
taxable  costs."  Counsel  fees  are 
here  treated  as  in  some  sense  uncer- 
tain in  amount,  and  for  this  reason 
that  the  party  having  a  right  of  re- 
covery over  should  not  have  the 
right  to  impose  such  a  cliarge;  but 
it  is  not  correct  to  say  that  such 
services  are  of  such  uncertain  value 
as  to  be  incapable  of  being  esti- 
mated. Nor  is  it  satisfactory  rea- 
soning that  because  the  charges  of 
counsel  vary,  no  allowance  what- 
ever should  be  made  for  such  an  ex- 
pense, when  it  is  among  the  natural 
and  i^roximate  consequences  of  the 
breach  of  contract.  It  was  ob- 
viously as  natural  and  proximate  a 
consequence  as  the  other  expenses 
of  the  suit. 

'  Chicago  V.  Robbins,  supra. 

^  See  Raudell  v.  Trimen,  18  C.  B. 
786;  Moule  v.  Garrett,  L.  R.  7  Ex. 
101;  Baxendale  V.  London,  etc.  R'y, 


14:0  COMPENSATION. 

directly  to  reimburse  expenses  and  losses ;  they  are  the  direct 
subjects  of  the  contract  or  dut}^,  rather  than  the  damages  for  a 
breach.  But  in  many  other  cases,  suits  against  one  person  or 
party  may  result  from  the  tort  or  breach  of  contract  of  another ; 
and,  then,  whether  damages  therefor,  including  the  costs  and 
expenses,  may  be  recovered  for  such  wrong  or  breach  of  con- 
tract, will  depend  on  whether  such  suits  with  the  consequences 
and  incidents  in  question,  were  the  natural  and  proximate  result 
of  the  act  complained  of,  or  were  witliin  the  contemplation  of 
the  parties.  "Where  a  person  falsely  professes  to  act  as  an  agent, 
there  is  an  implied  Avarranty  that  he  is  such.  If  he  have  no 
authority  and  his  pretense  of  being  agent  is  false,  either  the 
party  whom  he  assumed  to  represent,^  or  the  party  dealing  with 
him  on  the  faith  of  his  being  an  agent,^  may  hold  him  answer- 
able for  all  damages  resulting  from  his  unauthorized  contracts ; 
and  among  other  things,  for  costs  of  actions  brought  or  de- 
fended, in  consequence  of  such  contracts.  So  a  party  who  sells 
property  with  express  or  implied  warranty  of  title,  is  hable  for 
the  costs  of  a  successful  action,  as  well  as  damages  recovered 
therein,  against  his  vendee,  by  which  such  title  is  overthrown 
and  the  vendee  dispossessed,  or  compelled  to  pay  for  the  prop- 
erty to  another  person.^  The  right  of  a  party,  who  has  bought 
property  with  warranty  of  title,  to  defend  a  suit  brought  against 

L.    R.    10  Ex.  35;  Fisher    v.  Valde         ^  g^aats  v.  Ten  Eyck,  3  Caines,  111 
Travel's  Asphalte  Co.  1  C.  P.  D.  511;  Pitcher  v.  Livingston,   4  Johns.  1 
Mors  le  Blanch  v.  Wilson,  L.  R.  8  C.  Rickert    v.   Snyder,    9    Wend.   416 
P.  227;  Randall  v.  Roper,  98  E.  C.  L,  Armstrong  v.  Percy,  5  Wend.  535 
84;  Richardson  v.  Dunn,  8  C.  B.  N.  Bennett  v.  Jenkins,    13  Johns.  50 
S.  655;  Rouneberg  v.  The  Falkland  Waldo  v.  Long,  7  Johns.  173;  Hard- 
I.  Co.   17  C.  B.  N.  S.   1;  Brown  v.  ing  v.  Larkin,  41  lU.  413;  Crisfield 
Haven,  37  Vt.  439;  Neale  v.  Wyllie,  v.  Storr,  36  Md.  129;  Boyd  v.  Wliit- 
3  B.  &  C.    533;  Lewis  v.  Peake,  7  field,  19  Ark.  447;  Eldridge  v.  Wad- 
Taunt.  153;  Pennell  v.  Woodburn,  7  leigh,  12  Me.  371;  Ryerson  v,  Chap- 
C.  &  P.  117;  Penley  v.  Watts,  7  M.  man,  66  Me.  557;  Williamson  v.  Wil- 
&  W.  GOl;  Jones  V.  Wilhams,  7M.  &  liarason,   71   Me.   442;    Brewster  v. 
W.  493;  Walker  v.  Hatton,  10  M.  &  Countryman,  12  Wend.  446;  Marlott 
W.  249;  Smith  v.  HoweU,  6  Exch.  v.    Clary,    20    Ark.    251;    Giffert  v. 
730.  West,  33  Wis.  617;  Eaton  v.  Lyman, 

iPhilpot  V.  Taylor,  75  111.  309.  24  Wis.  438;  Stewart  v.  Drake,  9  N. 

2Collen  V.  AVright,  7E.  N.  B.  301;  J.    L.  139;    Holmes  v.    Sinnickson, 

Hughes  V.  Graime,  33  L.  J.   Q.  B.  15  N.  J.  L.  313;  Morris  v.  Rovran,  17 

335.  N,  J.  L.  304. 


ELEMENTS   OF   DiJSIAGE.  141 

liim  based  upon  an  adverse  claim,  after  he  has  given  notice  to 
the  vendor  and  requested  him  to  assmne  the  defense,  and  his 
faihu'e  to  reply,  or  refusal,  stands  upon  somewhat  different  con- 
siderations from  those  which  apply  to  sm-eties  and  others  in 
similar  situations.  A  vendee  has  a  right  to*  the  property  which 
he  has  purchased  as  between  hun  and  the  vendor  ;  and  unless 
he  is  made  aware  that  the  vendor's  title  was  defective,  or  that 
the  suit  of  a  third  person  for  the  property  cannot  for  some  rea- 
son be  defended,  he  has  a  right  to  defend  in  rehance  upon  the 
warranty,  to  the  end  that  he  may  have  and  enjoy  the  fruit  of 
his  purchase.  So  if  there  is  a  warranty  of  kind  or  quality,  the 
purchaser  has  a  right  to  act  upon  the  assumption  that  such  war- 
ranty is  true,  and  sell  with  hke  warranty,  and  defend  suits  for 
its  breach.^  But  if  he  has  'lotice  that  his  title  is  bad,  or  that 
any  warranty  cannot  be  maintained,  he  is  under  the  same  re- 
strictions as  all  other  parties  who  have  a  right  of  recovery  over, 
against  unnecessary  expense,  or  an  unrighteous  resistance  of  an 
action  which  cannot  be  defended.-  In  an  action  on  a  warranty  of 
the  soundness  of  a  horse  which  had  been  sold  with  hke  war- 
ranty, and  in  which  the  plaintiff  had  been  beaten,  on  a  suit 
against  him  on  his  warranty,  it  was  held  he  was  not  entitled  to 
recover  as  special  damage  the  costs  incurred  by  him  in  the 
defense  of  the  former  action,  for  the  jury  found  that  by  reason- 
able examination  of  the  horse,  the  plaintiff  might  have  discov- 
ered that  it  was  unsound  at  the  time  he  sold  it.^ 

Upon  statutory  bonds  and  undertakings  to  pay  damages  and 
costs,  resulting  from  the  issue  of  certain  writs,  as  an  injunction, 
sequestration  or  attachment,  in  case  it  shall  be  decided  that  the 
party  obtaining  it  was  not  entitled  to  it,  the  recovery  depends 
mainly  on  the  terms  of  the  undertaking ;  but  "  damages  and 
€osts"  include,  among  other  things,  the  costs  incident  to  the 
particular  writ,  and  of  the  proceedings  to  procure  its  discharge, 
and  including  counsel  fees,  except  in  the  federal  courts.* 

'Clare  v.  Maynard,  7  C.  &  P.  741;  ^  Wrightup  v.  Chamberlain,  supra. 

Cox  V.  Walker,  7  C.  &  P.  744;  Cur-  •'Corcoran  v.  Judson,  24  N.  Y.  106; 

tis  V.  Hannay,  3  Esp.  82;  Swett  v.  Hovey  v.  The  Rubber  T.  P.  Co.  SON. 

Patrick,  12  Me.  9;  Ryersou  v.  Chap-  Y.  335;  Dunning  v.   Humphrey,  24 

man,  66  Me.  561.  Wend.   31;    Groat    v.    Gillespie,    25 

s  Short  V.  Kalloway,  11  A.  &  E.  28;  Wend.  383;  Edwards  v.  Bodiue,  11 

Wrightup  V.  Chamberlain,  7  Scott,  Paige,  223;  Rose  v.  Post,  56  N.  Y. 

598.  603;  Coates  v.  Coates,  1  Duer,  664; 


142 


COMPENSATION. 


On  principle,  and  the  weight  of  authority,  where  the  prose- 
cution or  defense  of  suits  is  rendered  necessary,  naturally  and 
proximately,  by  a  breach  of  contract  or  any  wrongful  act,  the 
costs  of  that  litigation,  reasonably  and  judiciously  conducted, 
incurred  or  paid,  including  reasonable  counsel  fees,  are  recover- 
able as  part  of  the  damages.^ 

Where  a  judgment  recovered  may,  by  notice  to  one  ulti- 
mately liable,  fix  the  amount  which  the  latter  is  liable  to  pay 
to  the  party  against  whom  the  judgment  is  obtained,  in  some 
states  the  notice  is  required,  in  order  to  entitle  the  party  sued  to 
the  ulterior  recourse  for  the  costs  of  defending ;  because  the 
defense  is  to  be  made  or  not,  solely  in  the  interest  of  the  party 


AJdrich  v.  Reynolds,  1  Barb.  Ch. 
613;  Pettit  v.  Mercer,  8  B.  Mon.  51; 
Meshke  v.  Van  Doren,  16  Wis.  319; 
Andrews  v.  The  Glenville  Woolen 
Co.  50  N.  Y.  282;  Gear  v.  Shaw,  1 
Piuney  (Wis.),  608;  Strong  v.  De 
Forrest,  15  Abb.  427;  Troxell  v. 
Haynes,  49  How.  Pr.  517;  Barton  v. 
Fisk,  30  N.  Y.  171;  Tamaroa  v.  S. 
ni.  University,  54  111.  334;  Elder  v. 
Sabin,  66  111.  126;  Willson  v.  Mc- 
Evoy,  25  Cal.  170;  Cummings  v. 
Burleson,  78  111.  281;  Praeder  v. 
Gremm,  13  Cal.  585;  Guild  v.  Guild, 
2  Met.  229;  Brown  v.  Jones,  5  Nev. 
374;  Baggett  v.  Beard,  43  Miss.  120; 
Morris  v.  Price,  2  Blackf.  457;  Raup- 
man  v.  Evansville,  44  Ind.  392;  Al- 
exander V.  Calcord,  85  HI.  323;  Gar- 
rett V.  Logan,  19  Ala.  N.  S.  344; 
Steele  v.  Thatcher,  56  111.  257;  Miller 
V.  Garrett,  35  Ala.  N.  S.  96;  Holmes 
V.  Weaver,  52  Ala.  516;  Noble  v. 
Arnold,  23  Ohio  St.  264;  Riddle  v. 
Cheadle,  25  Ohio  St.  278;  McRae 
V.  Brown,  12  La.  Ann.  181;  Camp- 
beU  V.  Metcalf,  1  Mont.  378;  Derry 
Bank  v.  Heath,  45  N.  H.  524;  Long- 
worthy  V.  McKeh-y,  25  Iowa,  48; 
Behrens  v.  McKenzie,  23  Iowa,  333; 
Wallace  v.  York,  45  Iowa,  81;  Wilde 
V.  Joel,  6  Duer,  671;  Bonner  v.  Cop- 
ley, 15  La.  Ann.  504;  Sandback  v. 
Thomas,  1  Stark.  306;  Pritchet  v. 
Boevy,  1  C.  &  M.  775;  Hallo  way  v. 


Turner,  6  Q.  B.  928.  See  Day  v. 
Woodworth,  13  How.  U.  S.  363; 
Oelrichs  v.  Spair,  15  Wall.  311.  At- 
torney fees  not  allowed  in  action 
for  infringement  of  a  patent.  Teese 
V.  Huntingden,  23  How.  2. 

'  Hvighes  V.  Graeme,  33  L.  J.  Q.  B. 
335;  Zeigler  v.  Powell,  54  Ind.  173; 
Lawrence  v.  Hagerman,  56  111.  68; 
Kragg  V.  Ward,  67  111.  603;  West- 
field  V.  Mayo,  122  Mass.  100;  New 
Haven,  etc.  R.  R.  Co.  v.  Hayden, 
117  Mass.  433;  Noyes  v.  Ward,  19 
Conn.  250;  Pond  v.  Harris,  113  Mass. 
114;  White  v.  Madison,  26  N.  Y.  117; 
Henderson  v.  Squire,  L.  R.  4  Q.  B. 
170;  Webber  v.  Nicholas,  4  Bing.  16; 
Noble  V.  Arnold,  23  Ohio  St.  264; 
Alexander  v,  Jacoby,  23  Ohio  St. 
358;  Godwin  v.  Francis,  L.  R.  5  C. 
P.  295;  Ryerson  v.  Chapman,  66  Me. 
557;  Dubois  v.  Hermance,  56  N.  Y. 
673;  CaU  v.  Hagar,  69  Me.  521;  Bone- 
steel  V.  Bonesteel,  30  Wis.  511;  Ah 
Thaie  v.  Quan  Wan,  3  Cal.  216;  see 
Barnard  v.  Poor,  21  Pick.  378;  Rice 
V.  Austin,  17  Mass.  197;  Guild  v. 
Guild,  2  Met.  229;  Arcambel  v. 
Wiseman,  3  Dall.  234;  Goiild  v.  Bar- 
rett, 2  Mood.  &  Rob.  171;  Maiden  v. 
Tyson,  11  Q.  B.  292;  In  re  United 
Service  Co.  Johnston's  Claims,  L.  R. 
6  Ch.  212;  Tindall  v.  BeU,  11  M.  & 
W.  228;  Dixon  v.  Faucas,  3  E.  &  E. 
537. 


ELEMENTS    OF   DAMAGE.  14:3 

who  must  in  the  end,  be  chargealole  with  the  proper  conse- 
quences of  the  habihty  upon  which  the  judgment  is  founded ; 
therefore,  he  is  entitled  to  be  consulted,  and  to  have  no  expenses 
incurred  chargeable  to  him,  except  at  his  request  or  with  his 
sanction.  Confined  to  cases  covered  by  an  obligation  of  indem- 
nity, and  those  where  there  is  no  right  of  the  unmediate  defend- 
ant or  pai-ty  to  the  suit  pecuhar  to  himself,  to  be  asserted  in  the 
action,  the  inile  is  a  wholesome  one,  and  rests  upon  sound  prin- 
ciples. Of  this  class  are  actions  against  an  agent,  servant  or 
suret}^,  for  acts  of  which  the  master  or  principal  must  bear 
the  whole  responsibihty ;  suits  against  which  there  is  an  express 
indemnity,  and  those  in  which  the  party  proceeded  against  is 
sought  to  bo  made  hable  without  actual  misfeasance  for  the  acts 
of  another,  who  must  respond  for  the  consequences  of  that 
liabiht}^^ 

The  object  of  the  notice  is  not  to  give  a  ground  of  action ;  but 
if  a  demand  be  sued,  which  the  person  indemnifying  is  bound  to 
pay,  and  notice  be  given  to  him,  and  he  refuse  to  defend  the 
action,  in  consequence  of  which  the  person  to  be  indemnified  is 
obhged  to  pay  the  demand,  the  other  party  is  estopped  from 
disputing  it,  or  fi'om  claiming  that  the  party  sued  was  not  bound 
to  pay  it.2  Its  elf ect  is  to  let  in  the  party,  who  is  bound  to  in- 
demnif3%  to  defend  the  suit  against  the  indemnified  party,  and 
to  preclude  him  from  showing,  when  sued  for  such  indemnit}^, 
that  the  plaintiff  has  no  claim  for  the  alleged  loss,  or  not  to  the 
amount  alleged ;  that  he  made  an  improvident  bargain,  and  that 
the  defendant  might  have  obtained  better  terms,  if  the  oppor- 
tunity had  been  given  to  him.^ 

In  such  actions,  two  questions  arise :  first,  has  the  plaintiff  a 
legal  cause  of  action  ;  second,  to  what  extent  has  he  been  dam- 
nified? The  indemnifying  party  is  entitled  to  his  day  in  court 
on  these  questions.  If  he  has  notice  to  defend  a  suit,  brought 
against  another,  who  has  a  right  of  recovery  over  against  him, 

'Lowell  V.  Boston,  etc.  R.  R.  Co.  Fisher  v.  Fellows,  5  Esp.  171;Brook- 

23  Pick.   24;  Proprietors  of  L.  &  C.  lyn  v.   Brooklyn  City  R.  R.  Co.  57 

V.  Lowell  H.  R.  R.  Cor.  109  Mass.  221;  Barb.  497;  Finckle  v.Evers,  25  Ohio 

City  of  Ottumwa  v.  Parks,  43  Iowa,  St.  82. 

119;  Apgars,  Adm.  v.  Hiler,  24  N.  J.  ^D^f^eij  ^  g^ott,  3  T.  R.  374. 

L.  812;  Beckley  v.  Munson,  22  Conn.  ^g^jth   t.  Compton,  3  B.  &  Ad. 

299;  Holmes  v.-Weed,   24  Barb.  546;  407;  French  v.  Parish,  14  N.  H.  496. 


144  COMPENSATION. 

that  opportunity  is  offered  him ;  and  the  right  to  defend  at  his 
expense  will  depend  on  his  answer,  and  he  cannot  be  charged 
with  costs  of  an  improvident  defense,  or  one  made  contrary  to 
his  expressed  will.^ 

If  notice  cannot  be  given,  it  is  reasonable  that  the  indemnified 
party  should  exercise  some  judgment,  whether  to  defend  or  not, 
where  the  amount  is  unliquidated  or  the  demand  disputable. 
"Where  he  does  so,  without  notice,  and  judgment  is  recovered 
against  him,  it  is  res  inter  alios  acta  as  to  the  first  of  these 
questions,  and  ])inma  facie  evidence  on  the  second,  though  the 
contract  of  indemnity  is  general. 

There  are  not  the  same  reasons  for  notice  to  the  party  ulti- 
mately hable,  though  tliere  are  reasons  for  such  notice,  where  the 
action,  the  costs  of  which  are  claimed,  is  brought  on  some  inde- 
pendent contract,  or  is  the  alleged  result  of  a  tortious  act  of  such 
party;  and,  where  the  party  claiming  for  the  costs  of  defending 
such  action,  defended  it,  as  defendant,  to  maintain  his  own  legal 
rights,  derived  from  that  party,  and  does  not  make  the  defense 
in  his  interest ;  he  may  still  have  his  recourse  to  him  for  in- 
demnity. A  vendee,  having  a  warranty  of  title,  may  defend  a 
suit,  brought  by  a  third  person,  for  the  property,  without  con- 
sulting his  vendor.  He  has  a  right,  as  between  himself  and  his 
vendor,  to  retain  the  property,  and  maintain,  if  he  can,  the  title 
warranted  to  him ;  he  is  not  obhged  to  content  himself  with  a 
remedy  on  his  warranty,  and  acquiesce  in  any  adverse  claim  that 
may  be  set  up,  unless  the  circmnstances  show  that  it  cannot  be 
contested  ;  he  may  defend  a  suit,  brought  on  his  own  warranty 
made  to  his  vendee,  on  the  faith  of  the  warranty  of  his  vendor. 
A  person  purchasing  from  another,  who  falsely  pretends  to  be 
an  agent,  may  sue  the  supposed  principal  on  that  contract  to 
enforce  it.  In  case  of  defeat,  the  expenses  of  such  Utigation  are 
the  natural  and  proximate  result  of  the  breach  of  contract, 
and,  if  not  improvidently  incurred,  are  recoverable,  on  the  same 
principle  as  expenses  incurred  in  other  ways,  after  a  breach,  in 
furtherance  of  the  object  of  a  contract ;  or  to  lessen  the  damages 
which  would  otherwise  result  from  the  breach.  And  such  items 
will  presently  be  considered  as  a  distinct  topic.^ 

'  See  N.  Y,  State  M.  Ins.  Co.  v.  '  Hughes  v.  Graeme,  33  L.  J.  Q.  B. 
Protection  Ins.  Co.  1  Story,  458.  335;  Ryerson  v.  Chapman,  66  Me.  561. 


ELEMENTS    OF    DAMAGE. 


145 


The  authorities  are  in  conflict  on  the  necessity  of  notice,  and 
no  clear  rule  or  principle  can  be  deduced  from  them ;  but  the 
foregoing  views  appear  to  be  those  supported  by  the  best 
authorities,  and  most  in  harmony  with  the  principles  apphed  in 
other  and  analogous  cases.  Under  certain  conditions,  a  notice 
may  make  the  judgment  conclusive  evidence,  against  the  party 
notified,  in  favor  of  one  giving  the  notice  and  having  a  right  of 
recovery  over  against  him.  This  is  the  case  where  notice  is  given 
to  a  vendor  by  his  vendee,  of  proceedings  founded  upon  an 
adverse  title  turning  out  to  be  paramount.'  So  in  case  of  other 
Avarranties,  where  the  warrantee  has  acted  upon  it  in  such  man- 
ner as  was  within  the  contemplation  of  the  parties  at  the 
time  of  contracting,  as  by  giving  hke  warranty,  and  has  been 
sued  upon  it.'^ 


•  Thurston  v.  Spratt,  53  Me.  202; 
Boyd  V.  "S^liitfield,  19  Ark.  447; 
Marlot  V.  Clary,  20  Ark.  251;  Hard- 
ing V.  Larkin,  41  111.  413;  Selectmen 
of  Castleton  v.  Miner,  8  Vt.  209; 
Cresfield  v.  Storr,  36  Md.  129. 

-Reggio  V.  Braggiotti,  7  Cush.  160; 
CoUen  V.  Wright,  8  E.  &  B.  647; 
EandeU  v.  Trimen,  18  C.  B.  786; 
Brown  v.  Haven,  37  Vt.  439;  Moule 
V.  Garrett,  L.  E.  7  Ex.  101;  Mors 
le  Blanch  v.  Wilson,  L.  R.  8  C.  B. 
227.  In  Baxendale  v.  London  C.  & 
D.  R'y  Co.  L.  R.  10  Ex.  35,  the  case 
Avas  that  H.  having  contracted  with 
the  plaintiffs  who  were  carriers  for 
the  carriage  of  two  pictures  from 
London  to  Paris,  the  plaintiffs  con- 
tracted with  the  defendants  for  the 
•carriage  by  them  of  the  pictures 
-over  a  part  of  the  distance.  The 
pictures  were  damaged  on  the  jour- 
ney by  the  defendants'  negligence. 
H.  thereupon  brought  an  action 
against  the  plaintiffs,  who  gave 
notice  of  it  to  the  defendants  and 
requested  them  to  defend  it.  The 
defendants  refused,  and  told  the 
plaintiffs  to  take  their  own  course. 
The  plaintiffs  defended  the  action 
brought  against  them  by  H.  without 
Vol.  I  — 10 


success,  and  then  brought  an  action 
against  the  defendants  to  recover 
not  only  the  damages  found  by  the 
jury  to  have  been  sustained  by  H., 
but  also  the  costs  of  the  unsuccess- 
ful defense.  The  coui't  held  that 
the  costs  were  not  recoverable,  inas- 
much as  they  could  not  be  consid- 
ered as  the  natural  consequence  of 
the  defendants'  default,  the  contracts 
between  H.  and  the  plaintiffs,  and 
between  the  plaintiffs  and  the  de- 
fendants, being  separate  and  inde- 
pendent. The  decison  of  the  court 
of  exchequer  was  in  favor  of  recov- 
ery for  these  costs.  Cleasby,  B.,  said: 
"Now,  in  the  first  instance,  the 
plaintiffs  could  obtain  very  little  in- 
formation to  guide  them  either  in 
defending  the  action  or  in  settling 
it.  They  could  not  pay  money  into 
court,  for  the  damage  done  by  the 
water  to  the  pictures  was  difficult  to 
ascertain  without  a  regular  inquiry 
by  persons  competent  to  deal  with 
the  matter.  Having  regard  to  the 
nature  of  the  claim,  we  certainly 
think  they  could  not  be  expected 
either  to  settle  the  claim  before  ac- 
tion or  to  pay  money  into  court; 
and  we  think  it  was  the  necessary 


146 


COMPENSATION. 


It  is  a  part  of  the  contract  of  warranty  that  the  warrantor 
shall  defend  the  title ;  and  by  the  warrantee  giving  notice,  when 
the  title  is  attacked,  two  objects  are  attained :  first,  it  gives  the 
defendant  the  advantage  of  the  better  information  which  the 
warrantor  is  supposed  to  possess  in  relation  to  the  title ;  and, 


consequence  of  the  defendants'  neg- 
lect that  the  plaintiffs  should  be  put 
to  the  expense  of  ascertaining  in  a 
proper  way  the  amount  of  their  lia- 
bility to  Harding,  in  order  that  they 
might  recover  over  against  the  de- 
fendants. .  .  .  Clearly  the 
plaintiffs  were  entitled  to  some 
costs.  .  .  .  The  plaintiffs  are 
entitled  to  recover  from  the  de- 
fendants all  costs  incurred  in 
having  the  amount  of  their  lia- 
bility ascertained.  .  .  .  They 
are  not  entitled  to  the  costs  of 
any  defense  peculiar  to  themselves, 
Buch  as  that  they  were  mere  for- 
warding agents  and  not  carriers." 
But  a  different  view  was  taken  in 
the  exchequer  chamber.  Coleridge, 
C.  J.,  said:  "  The  defense  was  not,  in 
my  judgment,  a  reasonable  defense. 
It  was  without  any  foundation  in 
law,  and  there  was  no  authority 
from  the  defendants,  either  express 
or  implied,  to  set  it  up.  This,  how- 
ever, does  not  dispose  of  the  whole 
of  the  plaintiffs'  claim.  For  it  may 
be  said,  '  True,  the  defense  was  ill- 
advised  and  unauthorized;  still  the 
plaintiffs  were  obliged  to  do  some- 
thing to  ascertain  their  liability,  and 
they  at  least  are  entitled  to  such  an 
amount  of  costs  as  they  would  have 
incvirred,  had  they  allowed  jiidgment 
to  go  by  default,  upon  a  writ  of  in- 
quiry.' But  I  think  this  contention 
fails  also,  because  it  seems  to  me 
that  the  whole  of  the  costs  were  in- 
curred for  tlie  plaintiffs'  own  bene- 
fit, and  were  not  in  any  sense  the 
natural  and  proximate  result  of  the 
defendants'  breach  of  duty."  Keat- 
ing, J.,  was  of  the  same  opinion,  and 


thoiight  the  damages  too  remote. 
He  said:  "The  contract  between 
Harding  and  the  plaintiffs  is  wholly 
separate  from  that  between  the 
plaintiffs  and  defendants,  and  any 
costs  incurred  by  the  plaintiffs  in 
defending  an  action  by  Harding  on 
his  contract  cannot  be  regarded  as 
the  natural  or  proximate  result  of 
the  defendants'  breach  of  duty.  A 
different  question  might  have  arisen 
supposing  "the  defendants  had  re- 
quested the  plaintiffs  to  defend,  for 
in  that  case  these  costs  might,  ac- 
cording to  the  principles  which  gov- 
ern actions  for  money  paid,  .  .  , 
have  been  recovered  as  money  paid 
for  the  defendants  at  their  request." 
Lush,  J.,  was  also  of  the  same  opin- 
ion. In  his  judgment  the  costs 
claimed  were  not  the  natural  conse- 
quence of  the  defendants'  breach  of 
contract,  and  they  were  not  incurred 
at  their  request  nor  for  their  benefit. 
He  said:  "  There  were  two  separate 
contracts;  one  between  Harding 
and  the  plaintiffs,  and  the  other  be- 
tween the  j)laintiffs  and  the  defend- 
ants. The  defendants  knew  of  no 
one  but  the  plaintiffs  in  the  matter; 
and  it  might  well  have  been  that  the 
plaintiffs  were  liable  to  Harding  on 
their  contract,  and  yet  that  the  de- 
fendants were  not  liable  to  the 
plaintiffs      on      theirs,       or      vice 

versa 

"Now  it  should  be  observed  that 
the  plaintiffs  might  have  sued  the 
defendants  at  once,  when  the  meas- 
ure of  the  defendants'  liability 
would  have  been  the  injury  to  the 
pictures.  The  defendants'  neglect 
was  in  not  carrying  the  goods  safely, 


ELEMENTS    OF   DAMAGE. 


147 


second,  saves  the  necessity  of  trying  the  same  title  again  in  an 
action  against  the  warrantor.  The  notice  to  tlie  warrantor 
makes  him  privy  to  the  record,  and  he  is  bound  by  it  to  the 
extent  to  which  his  rights  have  been  tried  and  adjudged ;  and, 
in  an  action  asrainst  liim  at  the  suit  of  tlie  warrantee,  in  addi- 
tion  to  the  record,  all  that  is  necessary  to  be  shown  is  that  his 
title  was  in  issue,  and  judgment  given  upon  it.^  The  warrantor 
is  at  hberty  to  show  any  other  fact,  not  involved  in  that  adjudi- 
cation, which  will  be  beneficial  to  his  defense,  as  that  the  defect 
of  title  arose  after  he  sold  the  property,  and,  therefore,  that  he 
had  no  interest  in  the  determination  of  the  question  tried.^ 


and  tlie  plaintiffs,  though  them- 
selves protected  by  their  contract 
with  Harding,  might  still  have  re- 
covered against  them.  This,  then, 
is  not  as  the  court  below  appear  to 
have  thought,  a  case,  '  in  which  a 
person  incurs  a  liability  in  conse- 
quence of  the  neglect  or  default  of 
another  in  some  duty  owing  to  him.'. 
The  defendants  incurred  no  liability 
to  Harding,  and  their  liability  was 
quite  apart  from  any  liability'  of  the 
plaintiffs  to  Harding.  The  costs  of 
defending  Harding's  action,  there- 
fore, cannot  be  said  to  be  the  conse- 
quence of  the  defendants'  default. 
The  two  things  have  no  connection 
whatever  with  each  other.  But  the 
court  also  place  their  judgment  upon 
the  ground  that  it  was  reasonable 
that  the  plaintiffs  should  have  the 
damages  assessed  in  Harding's  ac- 
tion. It  may  have  been  reasonable 
for  their  own  benefit;  but  as  the  de- 
fendants could  not  be  bound  by  the 
assessment,  I  do  not  see  how  it  could 
be  for  theirs."  Quain,  J.,  said:  "  If 
this  were  a  contract  of  indemnity 
where,  although  there  were  two  con- 
tracts in  form,  there  is  only  one  in 
substance,  our  decision  might  be  in 
favor  of  the  plaintiff.  In  such  a 
case,  a  surety  who  is  called  upon  to 
pay  the  debt  due  or  owing  from  the 
principal  may  well  be  justified  in 


defending  an  action  at  the  principal's 
expense.  The  cases  which  have 
been  referred  to,  with  one  exception, 
are  aU  cases  of  indemnity,  and 
really  have  no  application  here.  For 
we  have  to  deal  w^ith  two  separate 
and  independent  contracts,  and  it 
would,  it  seems  to  me,  be  very  un- 
reasonable to  hold  that  the  plaintiffs 
should  be  able  to  charge  the  defend- 
ants against  their  will,  and  without 
theu-  sanction,  with  the  costs  of  an 
action  brought  upon  a  contract  made 
by  the  plaintiffs  with  Harding,  to 
which  the  defendants  were  no  par- 
ties and  with  which  they  had  no 
concern  whatever.  This  case,  then, 
is  not  one  of  principal  and  surety; 
and  the  only  ground  on  which  the 
plaintiffs  can  recover  these  costs  is, 
that  the  costs  are  the  natural  and 
reasonable  consequence  of  the  de- 
fendants' bi-each  of  contract,  and 
therefore  within  the  weU-known  rule 
laid  do^vn  in  Hadley  v.  Baxendale,  9 
Exch.  341.  "But  I  am  clearly  of 
ojiinion  that  they  cannot  be  so  con- 
sidered." The  case  of  Mors  le  Blanch 
v.  Wilson,  supra,  was  overniled. 

'  Davis  V.  Wilbourne,  1  Hill  (S.  C), 
27;  Minor  v.  Clark,  15  Wend.  425; 
Barney  v.  Dewey,  13  Johns.  225; 
Pickett  V.  Ford,  4  How.  (Miss.)  246; 
Colburn  v.  Pomeroy,  44  N.  H.  19, 

''  Thurston  v.  Spratt,  52  Me.  202. 


14:8  COMPENSATION. 

Fifths  such  losses  may  consist  of  labor  done  and  expenses  in- 
curred, to  prevent  or  lessen  damages  which  would  otherwise  result 
from  the  defendants  default,  or  misconduct.  /Tlie  law  imposes 
upon  a  party  injured  from  another's  breach  of  contract  or  tort, 
the  active  duty  of  making  reasonable  exertions  to  render  the 
injury  as  light  as  possible.  If,  by  his  neghgence  or  wilfulness, 
he  allows  the  damages  to  be  unnecessarily  enhanced,  the  in- 
creased loss,  that  which  was  avoidable  by  the  performance  of 
his  duty,  falls  upon  him.^  This  is  a  practical  duty  under  a  great 
variety  of  circumstances,  and  as  the  damages  which  are  suffered 
by  a  failure  to  perform  it  are  not  recoverable,  it  is  a  duty  of 
great  importance.  "Where  it  exists,  the  labor  or  expense  which, 
its  performance  involves  is  chargeable  to  the  party  liable  for  the 
injury  thus  mitigated ;  in  other  words,  the  reasonable  cost  of 
the  measures  which  the  injured  party  is  bound  to  take  to  lessen. 
the  damagv3s,  whether  adopted  or  not,  will  measure  the  compen- 
sation the  party  injured  can  recover  for  the  injmy,  or  the  part  of 
the  injury,  that  such  measures  have  or  would  have  prevented.^ 

A  case  decided  in  Maine,  fifty  years  ago,  is  often  quoted  on. 
this  subject,  and  affords  a  sound  exposition  of  this  duty. 
Weston,  J.,  said :  "  If  the  party  injured  has  it  in  his  power  to 
take  measm^es,  by  which  his  loss  may  be  less  aggravated,  this 
will  be  expected  of  him.  Thus,  a  contract  of  assurance,  where 
the  assured  may  be  entitled  to  recover  for  a  total  loss ;  he,  or  the 
master  employed  by  him,  becomes  the  agent  of  the  assurer  to 

'  Hamilton  V.  McPherson,  28  N.  Y.  Simpson  v.  Keokuk,  34  Iowa,  568; 
72;  Gillis  v.  Space,  63  Barb.  177;  Beymer  v.  McBride,  37  Iowa,  114; 
Eexter  v.  Starin,  73  N.  Y.  601;  Frost  v.  Knight,  L.  R.  7  Ex.  Ill; 
Huntingdon  v.  Ogdensburg,  etc.  R.  Heckslier  v.  McCrea.,  24  Wend.  304; 
R.  Co.  33  How.  Pr.  416;  Worth  v.  Davis  v.  Fish,  1  G.  Greene,  406;  Al- 
Edmonds,  53  Barb.  40;  Costigan  v.  lender  v.  C.  R.  &  P.  R.  R.  Co.  37 
The  Mohawk,  etc.  R.  R.  Co.  3  Denio,  Iowa,  364;  Dobbins  v.  Duquid,  65 
609;  Taylor  v.  Reed,  4  Paige,  573;  lU.  464;  Chamberlain  v.  Morgan,  68 
Dillon  V.  Anderson,  43  N.  Y.  331;  Pa.  St.  168;  New  Orleans,  etc.  Co.  v. 
Dorwin  v.  Potter,  5  Denio,  300;  Echols,  54  Miss.  264;  Hathorn  v. 
Hochster  v.  De  La  Tour,  2  E.  &  B.  Richmond,  48  Vt.  557;  Pinney  v. 
678;  Loker  v.  Damon,  17  Pick.  284;  Andrus,  41  Vt.  631;  Bradley  v.  Den- 
French  V.  Viuing,  103  Mass.  132;  ton,  3  Wis.  557;  Gordon  v.  Brewster, 
Cherry  v.  Thompson,  L.  R.  7  Q.  B.  7  Wis.  355;  Simpson  v.  Keokuk,  34 
573;  Driver  v.  MaxweU,  56  Ga.  11;  Iowa,  568. 
Eoper  V.  Johnson,  L.  R.  8  C.  P.  167;  ^  i^. 


ELEMENTS   OF   DAMAGE.  149 

save  and  turn  to  tlie  best  account,  such,  of  the  property  assured, 
as  can  be  preserved, 

"  The  purchaser  of  perishable  goods  at  auction,  fails  to  com- 
plete his  contract.  "What  shall  be  done?  Shall  the  auctioneer 
leave  the  goods  to  perish,  and  throw  the  whole  loss  upon  the 
purchaser  ?  That  would  be  to  aggravate  it  unreasonably  and 
unnecessarily.  It  is  his  duty  to  sell  them  a  second  time,  and  if 
they  bring  less,  he  may  recover  the  difference,  with  commissions, 
and  other  expenses  of  resale,  from  the  first  pm^chaser. 

"  If  the  party  entitled  to  the  benefit  of  a  contract,  can  pro- 
tect himself  from  a  loss,  arising  from  a  breach,  at  a  trifling 
expense,  or  with  reasonable  exertions,  he  fails  in  social  duty  if 
he  omits  to  do  so,  regardless  of  the  increased  amount  of  dam- 
ages for  which  he  may  intend  to  hold  the  other  contracting 
party  liable.  Qui  non  prohihet,  cum  prohibere  passet,  jiibet. 
And  he  who  has  it  in  his  power  to  prevent  an  injury  to  his 
neighbor,  and  does  not  exercise  it,  is  often  in  a  moral,  if  not  in 
a  legal  point  of  view,  accountable  for  it.  The  law  will  not  per- 
mit him  to  throw  a  loss,  resulting  from  a  damage  to  himself, 
upon  another,  arising  from  causes  for  which  the  latter  may  be 
responsible,  which  the  party  sustaining  the  damage  might,  by 
common  prudence,  have  prevented.  For  example,  a  party  con- 
tracts for  a  quantity  of  bricks  to  build  a  house,  to  be  delivered 
at  a  given  time ;  and  engages  masons  and  carpenters  to  go  on 
with  the  work.  The  bricks  are  not  delivered.  If  other  bricks 
of  an  equal  quality,  and  for  the  stipulated  price,  can  be  at  once 
purchased  on  the  spot,  it  would  be  unreasonable,  by  neglecting 
to  make  the  purchase,  to  claim  and  receive  of  the  delinquent 
party  damages  for  the  workmen,  and  the  amount  of  rent  which 
might  be  obtained  for  the  house  if  it  had  been  built.  The  party, 
who  is  not  chargeable  with  a  violation  of  his  contract,  should 
do  the  best  he  can  in  such  cases ;  and  for  any  unavoidable  loss 
occasioned  b}^  the  failure  of  the  other,  he  is  justly  entitled  to  a 
liberal  and  complete  indemnity.".!  /When,  after  a  contract  has 
been  entered  into  between  two  parties,  notice  is  given  by  one  of 
them  that  the  contract  is  rescinded  on  his  part,  he  is  liable  for 
such  damages  and  loss  only  as  the  other  party  has  suffered  by 

'  Miller  v.  Mariners'  Church,  7  Greenlf.  51. 


150  COMrENSATION. 

reason  of  such  rescinding ;  and  it  is  the  duty  of  such  other 
party,  upon  receiving  such  notice,  to  save  the  former,  as  far  as 
it  is  in  his  power,  all  further  damages,  though  the  performance 
of  this  duty  may  call  for  affirmative  action.^  If  a  person  hhed 
for  service  for  a  given  term  is  wrongfully  dismissed,  he  is  entitled 
to  the  stipulated  wages  for  the  term  of  his  engagement,  if  that 
is  his  loss.  It  is  _^j>?'m(2  facie  his  loss ;  but  the  law  imposes  on 
him  the  duty  to  seek  other  employment ;  and  to  the  extent  that 
he  obtains  it  and  earns  wages,  or  might  have  done  so,  his  dam- 
ages will  be  reduced.^ 

In  an  action  for  damages  resulting  from  alleged  defects  in  the 
construction  of  a  building,  so  that  the  roof  leaked  and  injured 
the  interior  work  or  property  therein,^  or  for  breach  of  a  con- 
tract to  repair  a  building,  from  which  similar  injuries  ensued,^  or 
for  injury  to  crops  through  default  of  the  defendant,  in  not 
building  or  repairing  a  fence,  or  his  tortious  opening  of  the 
same,^  where  the  party  suffering  from  the  injury  is  aware  of  the 
fact  and  the  cause,  and  that  by  a  little  timely  labor  and  expense 
the  damage  could  be  avoided,  the  law  imposes  the  duty  on  him 
to  stay  the  injury,  when  he  is  in  a  favorable  situation  to  do  it, 
and  enforces  the  duty  by  confining  his  redress  for  the  injury, 
which  was  thus  avoidable,  to  compensation  for  the  necessary 
and  proper  means  of  prevention.  The  dut}^  in  such  cases  is  not 
arbitrarily  imposed  on  the  injured  party,  and  exacted  of  him  in 
ah  cases,  to  do  or  amend  the  work  of  the  other  party,  or  to 
finish  it ;  but  only  when  in  view  of  all  the  circumstances  of  the 
particular  case,  it  is  a  reasonable  duty,  which  he  ought  to  per- 
form, instead  of  passively  allowing  a  greater  damage.  "Where 
the  party  whose  duty  it  is  primarily  to  do  the  work  necessary 
to  fulfil  the  contract,  and  to  prevent  damage  from  past  failure, 

»  Dillon  V.    Anderson,    43    N.   Y.  ^  father  v.  Butler  Co.  28  Iowa,  253; 

231.  Haysler  v.  Owen,  61  Mo.  270. 

2  Borden  Mining  Co.  v.  Barry,  17  ^Dorwin  v.  Potter,  5  Denio,  306; 

Md.  419;  Sutherland  v.  Wyer,  67  Me.  Cook  v.  Soule,  56  N.  Y.  420;  Thomp- 

64;    Giles  v.   Space,    63    Barb.    177;  son  v.  Shattuck,  2  Met.  615. 

Heavilon  v.    Kramer,    31  Ind.    241;  ^Andrews  v.  Jones,   36  Tex.  149; 

Hailbroner  v.  Hancock,  33  Tex.  714;  Campbell    v.    Miltenberger,    26  La. 

Howard  v.  Daly,  61  N.  Y.  362;  Wil-  Ann.  72;  Loker  v.  Damon,  17  Pick, 

liams  V.   Chicago   Coal  Co.    60  lU.  284;  Fisher  v.  Gaebel,  40  Mo.  475; 

149.  Waters  v.  Brown,  44  Mo.  302. 


elkmi:nts  of  damage.  151 

or  to  stay  injury  resulting  from  his  negligence,  or  other  wrong, 
is  in  possession,  or  has  equal  knowledge  and  opportunity,  he 
alone  may  be  looked  to  to  fulfil  that  duty,  and  it  will  not  avail 
him  to  say  the  injured  party  might  have  lessened  the  damages 
by  performing  the  duty  for  him.^ 

If  the  party  claiming  damages  is  a  purchaser,  he  can  recover 
no  more  than  it  would  cost  liim,  with  reasonable  diligence,  to 
supply  himself  with  the  same  property  by  resort  to  the  market,^ 
or  some  other  source  or  means  of  supply.^  So,  where  property 
is  sold  with  a  warranty  of  fitness  for  a  particular  purpose,  if  it 
be  of  such  a  nature  that  its  defects  can  be  readily  ascertained, 
and  in  fact  are  ascertained,  yet,  the  purchaser  persists  in  using 
it,  whereby  losses  and  expenses  are  incmTed,  such  losses  come 
of  his  own  wrong,  and  he  cannot  recover  damages  for  them,  as 
consequences  of  the  breach  of  warranty.*  A  sold  to  B  a  quan- 
tity of  pork  in  barrels,  with  a  warranty  that  the  barrels  would 
not  leak  ;  B  stored  it  in  a  suitable  place,  but  found  afterwards 
that  some  of  the  barrels  were  leaking.  In  order  to  preserve  the 
pork  he  filled  the  leaking  barrels  from  time  to  time  with  new 
brine ;  but  they  continued  to  leak,  and  a  considerable  quantity  of 
the  pork  was  spoiled.  B  gave  no  notice  to  A  of  the  condition  of 
the  barrels,  nor  did  he  offer  to  return  the  pork.  It  was  the 
established  practice  among  persons  dealing  in  pork,  of  which  B 
was  presumed  to  be  cognizant,  where  the  leaking  of  the  barrels 
continued  after  they  had  been  filled  with  new  brine,  to  take  out 
the  pork  and  repack  it  in  new  barrels.  In  a  suit  brought  by  A 
for  the  price  of  the  pork,  in  which  B  claimed  a  deduction  of  the 
damages  for  breach  of  the  warranty,  it  was  held,  that  the  only 
deduction  B  was  entitled  to  was  the  sum  which  he  would  have 

1  Meyers  v.  Burns,  35  N.  Y.  269;  401;    Gardner    v.    Smith,    7    Mich. 

Hexter    v.    Knox,    63    N.    Y.    5G1;  410. 

Schwingerv.  Raymond.  83 N.Y.  192;  -Parsons  v.  Sutton,  66  N.  Y.  92 
Keyes  v.  Western  Yt.  S.  Co.  34  Vt.  McHose  v.  Fuhiier,  73  Pa.  St.  365 
81;  Haysler  v.  Owen,  61  Mo.  270;  Gainsford  v.  Carroll,  2  B.  &  C.  624 
Fisher  v.  Goebel,  40  Mo.  475;  Green  Barrow  v.  Arnaud,  8  Q.  B.  604. 
V.  Mann,  11  111.  613;  Waters  v.  ^  Benton  v.  Fay,  64  III.  417;  Bey- 
Brown,  44  Mo.  802;  Smith  v.  Chi-  .mer  v.  McBride,  37  Iowa,  114;  Grand 
cago,  etc.  R.  R.  Co.  38  Iowa,  518;  Tower  Co.  v.  Phillips,  23  Wall.  471; 
Chicago,  etc.  R.  R.  Co.  v.  Ward,  16  Hinde  v,  Liddell,  L.  R.  10  Q.  B.  265. 
111.  522;  Flynn  v.  Trask,  11  Allen,  ''Draper  v.  Sweet,  66  Barb  145; 
550;   Priest    v.    Nichols,    116    Mass.  Maynard  v.  Maynard,  49  Vt.  £97. 


152  COMPENSATION. 

been  compelled  to  pay  for  new  barrels  in  the  place  of  the  leaky- 
ones,  and  for  the  repacking  of  the  pork  in  them.  If  B,  without 
any  knowledge  that  the  barrels  were  leaky,  and  without  any 
care  in  informing  himself  of  their  condition,  had  suffered  the 
pork  to  remain  in  the  barrels  for  a  reasonable  time,  and  it  had 
thereby  become  spoiled,  he  could  have  recovered,  in  an  action 
on  the  warranty,  the  value  of  the  pork  spoiled.  But,  as  he 
knew  that  the  barrels  were  leaky,  and  might  have  prevented 
the  injury  to  the  pork,  by  procuring  new  barrels,  and  repacking 
it,  the  loss  of  the  pork  should  be  regarded  as  attributable  to 
his  own  want  of  care,  rather  than  to  the  defect  of  the  barrels.^ 
The  principle  that  the  injured  party  must  reasonably  exert 
himself  to  prevent  damage  applies  alike  to  cases  of  contract  and 
tort.^  He  is  not  required  to  commit  a  tort  to  prevent  damages  f 
nor  is  he  required  to  anticipate  and  provide  against  a  threatened 
trespass.-*  The  plaintiff  had  a  lease  of  a  grazing  farm,  which 
he  had  occasion  to  use  to  its  capacity,  in  grazing  his  cattle  in- 
tended for  sale ;  the  defendant  wrongfully  turned  other  cattle 
of  his  own  upon  the  farm,  and  persisted,  against  the  plaintiff's 
reraonstrauce,  in  keeping  them  there  ;  in  consequence  of  which 
the  plaintiff  suffered  serious  loss  to  his  stock  for  want  of  suffi- 
cient pasturage.  It  was  held  not  to  be  the  duty  of  the  plaint- 
iff, under  such  circumstances,  to  }H'ovide  other  pasturage  for  his 
cattle  to  lessen  damages  in  exoneration  of  the  defendant.^ 

'  Hitchcock  V.  Hunt,  28  Conn.  343.  wrongfully  turned  in,  to  remove  his 

'^  Su^therland  v.  Wyer,  67  Me.  64.  own    cattle  from    the  pasture,  be- 

5  Wolf  V.  St.  Louis,  etc.  Co.  15  Cal.  fore    they    should    be    injuriously 

SI  a;  Hubbell  v.  Meigs,  50  N.  Y.  480;  affected  by  the  overfeeding  of  the 

see  Wing  Chang  v.  Mayor,  etc.  47  defendant's   cattle;    or,   to  prevent, 

Cal.  531.  at  any  particular  time,  further  in- 

^Plummer  v.  Penobscot  L.  Asso.  juiy  from  this  cause. 
67  Me.  363;  Reynolds  v.  Chandler,  The  rule  in  question  (if  based  upon 
43  Me.  513;  see  Driver  v.  W.  U.  R.  R.  the  supposed  duty)  is  simply  one  of 
Co.  32  Wis.  569.  good  faith  and  fair  dealing.  If  a 
*  Gilbert  v.  Kennedy,  22  Mich,  man  tortiovisly  injures  the  roof  of 
117.  In  this  case,  the  duty  in  ques-  my  dwelling,  and  I  obstinately  leave 
tion  is  recognized,  but  Christiancy,  it  in  that  condition,  and,  having  the 
J.,  said:  "  AVliether  it  is  apphcable  opportunity,  refuse  or  neglect  to 
at  all  to  the  facts  of  the  present  repair,  until  the  furniture  and  bed- 
case,  is  only  important,  so  far  as  it  ding  in  the  house  are  injured  or 
bears  on  the  duty  of  the  plaintiff,  destroyed  by  the  rains,  I  cannot 
when  the  defendant's  cattle  were  recover  of  him  for  this  injury  to  my 


ELEMENTS    OF   DAMAGE. 


153 


A  siu-ety  is  not  bound  to  pay  his  principal's  debt  as  a  duty  to 
prevent  the  costs  incident  to  a  suit  for  its  collection,^  Any  loss 
or  expense,  occasioned  by  an  attempt  to  avoid  payment  of  an 
obligation,  cannot  be  contemplated  by  the  parties  as  a  subject 
of  indemnity,  the  true  meaning  of  the  contract  being,  that  if 


furniture  and  bedding,  which  I 
might  have  avoided  by  timely  re- 
pairs. And,  if  a  man  come  to  my 
field,  where  my  cattle  are  grazing, 
turn  them  out  into  the  street,  and 
turn  his  own  cattle  in,  thus  ousting 
me  from  the  possession,  and  claim- 
ing and  holding  exclusive  possession 
against  me,  I  cannot  leave  my  cat- 
tle in  the  street  to  starve,  and  then 
charge  him  with  their  full  value,  if 
it  be  practicable,  by  reasonable 
effort  on  my  part,  to  procure  other 
pasture  or  feed  for  them;  but  I  can 
I'ecover  only  such  damages  as  I 
have  suffered,  beyond  what  I  might 
have  avoided,  by  reasonable  dili- 
gence. But,  if  he  come  to  the  same 
field,  and  wrongfully  turn  his  cattle 
in  with  mine,  neither  taking  nor 
claiming  any  exclusive  possession, 
and,  as  often  as  I  turn  his  cattle  out, 
he  persists  in  turning  them  in  again; 
till  I  find  it  impracticable  to  keep 
them  out,  "without  coming  to  blows, 
and  cease  to  attemj)t  it,  and  my 
cattle,  from  this  cause,  are  deprived 
of  necessary  feed,  and  I  resort  to  a 
suit,  as  my  only -remedy,  which  is 
substantially  the  present  case,  at 
what  particular  point,  in thisseries 
of  tortious  conduct,  does  good  faith 
to  him  require  me  to  turn  my  own 
cattle  from  my  own  field,  and  find 
pasture  for  them  elsewhere,  to  save 
h.im  from  liability  for  tlieir  further 
injury  from  his  repeated  or  continu- 
ous wrongs?  Have  I  not  a  better 
right  to  insist  that  he  shall,  and  to 
presume  that  he  will,  relent,  and 
cease  the  continuance  of  his  tortious 
acts,  than  he  has  to  claim  that  I  shall 


remove  my  cattle  from  my  own 
field  and  leave  it  to  him  ?  Is  it  not 
rather  his  duty  to  cease  the  continu- 
ance of  his  wrongs,  than  mine  to  give 
up  my  acknowledged  right?  The 
damages,  in  such  a  case,  are,  in  no 
proper  sense,  increased  by  any  act 
or  negligence  of  mine,  but  by  the 
continuance  of  his  own  tortious  con- 
duct. As  to  the  question  of  duty, 
as  well  might  it  be  said,  if  he  had 
repeatedly  assaulted  and  beaten  me 
and  my  family,  in  my  own  house, 
and  declared  his  intention  of  repeat- 
ing the  process,  as  long  as  we  should 
remain  there,  it  would  be  my  duty 
to  remove  myself  and  family  from 
the  house,  to  avoid  increasing  the 
damages  which  might  otherwise 
accrue  from  his  further  continuance 
or  repetition  of  the  like  conduct. 

"  There  was  no  duty  resting  upon 
the  plaintiff,  at  any  time,  to  remove 
his  cattle  and  procure  pasturage  for 
them  elsewhere,  if  this  could  have 
been  done.  In  perfect  good  faith, 
the  plaintiff  had  a  right  to  keep  his 
cattle  there,  and  to  hold  the  defend- 
ant liable  for  the  continuous  in- 
jury, arising  from  his  continuous 
wrong.  But,  if  the  plaintiff  chose 
to  take  any  of  his  cattle  out.  to  pre- 
vent further  injury,  it  would  then, 
as  to  such  cattle,  become  his  duty  to 
make  a  reasonable  effort  to  procure 
other  food  or  pasturage  for  them,  in 
the  most  prudent  way  he  reasonably 
could."  See  Lawson  v.  Price,  45 
Md.  123. 

'McKee  v.  CampbeU,  27  Mich.  497; 
Holmes  v.  Weed,  24  Barb.  546. 


154:  COMPENSATION. 

the  surety  pays  voluntarily,  he  shall  be  reimbursed;  if  he  is 
compelled  by  s'uit  to  pay,  he  shall  also  be  indemnified  for  his 
costs  and  expenses.  Flight,  to  avoid  payment  of  the  debt,  is 
an  accident  wholly  unforeseen,  and  its  consequences  cannot  be 
considered  as  provided  for.  The  principal  had  a  right  to  calcu- 
late upon  the  surety's  ability  to  pay,  and  did  not  stipulate  to 
save  him  harmless  from  anything  but  the  payment  of  money. 
If  the  surety  were  put  in  prison,  or  if  his  goods  were  sold  at  a 
sacrifice,  these  would  not  be  legal  grounds  of  suit  for  indemnity, 
because  they  might  be  avoided  by  payment,  which  he  must  be 
considered  as  stipulating  he  could  make.^ 

If  work  is  improperly  done,  or  not  within  the  agreed  time, 
but  is  of  use  to  and  appropriated  by  the  emploj^ee,  the  quantum 
meruit  claim  for  it  is  reducible  by  allowance  of  the  damages 
for  failure  to  perform  the  contract  in  manner  and  time ;  but  in 
such  a  case,  if  the  employer  can  protect  himself  from  damage 
by  reason  of  the  defective  or  dilatory  work,  he  is  bound  to  do 
so,  if  practicable,  at  a  moderate  expense,  or  by  ordinary  and 
reasonable  efforts ;  and  he  can  charge  the  dehnquent  party  for 
such  expense  and  efforts,  and  the  damages  which  could  not  be 
avoided  by  such  dihgence.^ 

In  case  of  wrongful  injury  to  person  or  property,  the  injured 
party  is  required  to  use  reasonable  exertion  to  lessen  or  moderate 
the  resulting  damage.^  Land  adjacent  to  a  raih'oad  was  flooded 
by  water  turned  on  to  it  by  the  construction  of  the  road ;  it 
got  into  the  cellar  of  the  house  thereon  and  injured  the  walls. 
It  was  held  that  the  owner  was  bound  to  use  reasonable  care, 
skill  and  diligence,  adapted  to  the  occasion,  to  prevent  this  con- 
sequence, notwithstanding  the  wrongful  agency  of  the  railroad 
company  in  turning  the  water  upon  the  premises.*  Recovery 
cannot  be  had  against  a  notary  for  negligent  omission  to  give 
notice  of  protest  to  an  indorser,  where  the  holder  could,  but 
would  not,  resort  to  other  grounds  for  fixing  the  indorser.^  Per- 
sons whose  goods  are  destroyed  by  a  mob,  in  a  riot  in  a  city, 

'Hayden  v.  Cabot,  17  Mass.  169.  37  Iowa,  264;  The  Baltimore,  8  WaU. 

2  Davis  V.  Fish,  1  G.  Greene,  406;  377;  Little  v.  McGuire,  43  Iowa,  447. 
Mather  v.  Butler  Co.  28  Iowa,  259.  ■*  Chase  v.  The  N.  Y.  Cent.  R.  E. 

3  French  v.  Vining,  102  Mass.  132;  Co.  24  Barb.  273. 

Allencler  v.  Chicago,  etc.  R.  R.  Co.  ^  Franklin  v.  Smith,  21  Wend.  624. 


ELEMENTS    OF   DAMAGE.  155 

are  not  entitled  to  recover  from  the  city  the  vahie  of  the  goods 
destroyed,  unless  such  persons,  if  they  had  knowledge  of  the 
impending  danger,  use  reasonable,  diligence  to  notify  the  mayor 
or  sheriff  of  the  threatened  riot,  and  the  apprehended  danger 
to  their  property.^  The  owner  of  land,  on  which  a  personalty  tax 
has  been  irregularly  caused  to  be  charged  by  the  tax  collector, 
will  be  denied  any  remedy  against  him  therefor,  where  it  was 
in  the  power  of  the  owner  with  very  little  trouble  and  expense 
to  appear  before  the  board  or  tribunal  having  power  in  the 
premises  and  procure  a  correction.^  A  party,  interested  in  a  de- 
cree for  a  fund  invested,  can  claim  no  indemnity  for  deprecia- 
tion of  the  fund  during  his  delay  to  enforce  the  decree,  it  being 
his  duty  to  apply  seasonably  to  the  court  to  enforce  the  decree.^ 
A  claunant  of  damages  is  bound  to  accept  reasonable  offers  of 
the  other  party,  or  a  tliird  person,  having  direct  reference  to  the 
subject  of  the  loss,  which  would  have  the  effect  of  reducing  or 
preventing  damage.* 

"Where  damages  can  thus  be  saved  by  timely  preventive 
measures,  taken  by  the  injured  party,  it  is  his  dMtij  to  exert 
hunself  for  that  purpose ;  but  he  has  a  correlative  rujUt.,  in  sim- 
ilar cases,  to  employ  other  means  to  attain  the  object  of  the 
contract  broken,  which  was  within  the  contemplation  of  the 
parties  at  the  time  of  contracting ;  or  to  extricate  himself  from 
any  predicament  in  which  the  wrong  complained  of  may  have 
placed  him.^ 

Employer  may  finish  contkactor's  contract  at  his  expense. 
On  failure  of  a  contractor  to  finish  his  contract,  the  employer 
may  cause  it  to  be  done  by  others,  and  the  reasonable  sum  re- 
quired to  be  paid  therefor  may  be  recovered  of  the  delinquent 
party.^     One  who  has  contracted  for  the  shipment  of  goods,  or 

'  Wing  Chang  v.  The  Mayor,  etc.  ^  Hoffman  v.  Union  Feriy,  68  N. 

47  Cal.  531.  Y.  3S5;  Kelsey  v.  Remer,  43  Conn. 

estate    V.    Powell,     44    Mo.    436;  129;  WiUiams  v.  Vanderbilt,  28  N. 

Wright  V.  Keeth,  24  Me.  158.  Y.  217;  James  v.  Hodsden,  47  Vt. 

3  Carson's     Ex'r    v.    Jennings,    1  127. 

Wash.  C.  C.  129.  « Clark  v.  Russell,   110  Jlass.  133; 

^Dobbms  v.  Duquid,  65  III.   464;  Sneed  v.  Foord,  1  E.  &  E.  G02;  Paine 

Parsons  V.  Sutton.  66  N.  Y.  92;  Bey-  v.   Sherwood,  21  Minn.  225;  Hinde 

nier  v.  McBride,  37  Iowa,  114;  Besher  v.  Liddel,  L.  R.  10  Q.  B.  265. 
V.  Richards,  9  Ohio  St.  495. 


156  COMPENSATION, 

to  be  carried  as  a  passenger,  may  employ  other  reasonable 
means  of  transportation,  if  the  carrier  fails  to  fulfil  his  con- 
tract, and  recover  the  excess  of  cost  as  well  as  other  damages.^ 
The  question  whether  the  expense  of  the  substituted  mode  of 
conveyance,  as,  indeed,  whether  any  expense  for  a  substituted 
performance,  or  to  counteract  the  injurious  elfect  of  the  act 
complained  of,  may  be  recovered,  will  depend  on  whether  the 
act  done  for  which  such  expense  was  incurred,  was  a  reasonable 
thing  to  do,  considering  all  the  circumstances.  A  party  to  a 
contract,  when  it  has  been  broken  by  the  other,  has  a  right  to 
fulfil  it  for  himself,  as  nearly  as  may  be,  but  he  must  not  do 
this  unreasonably,  as  regards  the  other  party,  nor  extravagantly.^ 
On  breach  of  a  contract  to  carry,  by  vessel,  an  ordinary  article 
of  merchandise,  the  shipper  will  not  be  justified  in  procuring 
shipment  by  rail,  if  the  railroad  prices  would  render  it  unprofit- 
able. A  person  has  no  right  to  put  others  to  an  expense  of 
such  a  nature  as  he  would  not,  as  a  reasonable  man,  incur  on 
his  own  account.^ 

May  D.ijVIAGES   for   breach    of   contract   include    other    TH/IN 

PECUNIARY  elements?  —  111  actious  upon  contract,  the  losses 
sustained  do  not,  by  reason  of  the  nature  of  the  transactions 
which  they  involve,  embrace,  ordinarily,  any  other  than  pecu- 
niary elements.  There  is,  hoAvever,  no  reason  why  other 
natural  and  direct  injuries  might  not  justify  and  require  com- 
pensation. Contracts  are  not  often  made  for  a  purpose,  the  de- 
feating or  impairing  of  which  can,  in  a  legal  sense,  inflict  a 
direct  and  natural  injury  to  the  feelings  of  the  injured  party. 
A  breach  of  promise  of  marriage  is  an  instance  of  such  a  con- 
tract, and  such  considerations  enter  into  the  estimate  of  the 
damages.^    Tlie  action  for  such  a  cause  is  often  referred  to  as 

» Hamlin  V.  The  Great  N.  R'y  Co.  34  Mich.  439;  WilUams  v.  Vander- 

1  H.  &  N.  408;  Denton  v.  Great.   N.  bilt,  28  N.  Y.  217. 

R'y  Co.  5  E.  &  B.  860;  Cranston  v.  =Le  Blanch  v.  L.  &  N.  W.  R'y  Co. 

Marshall,  5  Ex.  395;  Ogden  v.  Mar-  supra. 

shall,  8  N.  Y.  340;  Collins  v.  Baum-  » Ward's  C.  &  P.  li.  Co.  v.  Elkins, 

gardner,  52  Pa.  St.  461;  Le  Blanch  supra. 

V.  L.  &  N.  W.  R'y  Co.  1  C.   P.  D.  ••Wells  v.  Padgett,  8  Barb.    323,- 

286;  Ward's  C.  &  P.  L.  Co.  v.  Ellcins,  Tobin  v.  Shaw,  45  l^Ie.  331;  Wilber 

V.  Johnson,  58  Mo.  600. 


ELEMENTS    OF   DAMAGE.  157 

an  exceptioiical  action.  In  a  certain  sense  it  is  so ;  but  in  the 
particular  under  consideration,  it  is  only  peculiar.  It  is  an 
action  upon  contract,  and  the  damages  allowed  are  such  as,  con- 
sidering the  nature  and  benefits  of  the  thing  promised,  will  be 
an  adequate  compensation.  They  being  of  a  personal  nature, 
cannot  be  wholly  measured  by  a  pecuniary  standard ;  the  cause 
of  action,  for  the  same  reason,  does  not  survive ;  it  dies  with 
the  person,  as  ah  demands  for  personal  injmies  do.  They  are 
recoverable  by  the  injured  party  because  they  proceed  directly 
and  naturally  from  the  breach.  Other  actions  upon  contract 
may  embrace  like  damages.  Blackburn,  J.,^  said :  "  Where  there 
is  a  contract  to  supply  a  thing,  and  it  is  not  supplied,  the  dam- 
ages are  the  difference  between  that  which  ought  to  have  been 
supplied  and  that  which  you  have  to  pay  for  it,  if  it  be  equally 
good ;  or  it  the  thing  is  not  obtainable,  the  damages  would  be 
the  difference  between  the  thing  which  you  ought  to  have  had 
and  the  best  substitute  you  can  get,  upon  the  occasion,  for  the 
purpose.  It  was  urged  that  though,  when  the  plaintiff  was 
.  .  (left  by  a  carrier  short  of  his  destination),  .  .  if  he  had 
been  able  to  hire  a  fly,  or  obtain  a  carriage,  and  paid  money  for 
it,  it  was  admitted  he  could  recover  that  money, —  yet  inasmuch 
as  he  could  get  no  carriage,  and  was  compelled  to  walk 
under  penalty  of  staying  where  he  was  all  night,  he  was  not 
entitled  to  get  anything.  .  .  ISTow,  as  I  have  said,  what  the 
passenger  is  entitled  to  recover  is  the  difference  between  what 
he  ought  to  have  had  and  what  he  did  have  ;  and  when  he  is 
not  able  to  get  a  conveyance  at  all,  but  has  to  make  the  jom-ney 
on  foot,  I  do  not  see  how  you  can  have  a  better  rule  than  that 
.  .  .  the  jury  were  to  see  what  was  the  inconvenience  to 
the  plaintiffs  in  ha\'ing  to  walk,  as  they  could  not  get  a  car- 
riage." While  it  is  true  that  if  the  broach  causes  no  actual  in- 
jury beyond  vexation  and  annoyance,  as  all  breaches  of  contract 
do  more  or  less,  they  are  not  subjects  of  compensation,  unless 
to  the  extent  that  the  contract  was  made  specially  to  procm^e 
exemption  from  them.  To  that  extent,  that  is,  where  a  con- 
tract is  made  to  secure  rehef  from  a  particular  inconvenience  or 
annoyance,  or  to  confer  a  particular  enjoyment,  the  breach,  so 

'  In  Hobbs  v.  London,  etc.  R'y  Co.  L.  R.  10  Q.  B.  111. 


158  COMPENSATION. 

far  as  it  disappoints  in  respect  of  that  purpose,  may  give  a  right 
to  damages  appropriate  to  the  objects  of  the  contract.  Incon- 
venience, in  the  case  quoted  from,  was  a  prominent  element  of 
damage.  That  inconvenience  consisted  in  a  disagreeable  walk 
of  three  miles,  when  the  contract  entitled  the  injured  party  to 
be  carried  in  a  railway  car  a  greater  portion  of  the  distance. 
It  was  a  rainy  night,  and  he  had  with  him  his  wife  and  small 
children.  Sickness  ensued  to  some  of  them  from  taking  cold ; 
damages  for  this  were  excluded  by  perhaps  too  rigid  an  applica- 
tion of  the  rule  that  the  damages  must  be  the  natural  and  prox- 
imate consequence  of  the  breach ;  but  a  verdict  allowing  101. 
damages  for  the  inconvenience  was  sustained.^ 

In  an  action  for  breach  of  a  contract  to  convey  the  plaintiff, 
on  a  steamship,  from  London  to  Sheerness,  where  the  breach 
consisted  in  putting  the  plaintiff  off,  without  just  cause,  short  of 
his  destination,  with  circumstances  of  aggravation,  it  was  held 
proper  to  show  these  circumstances,  and  Park,  B.,  thus  remarked 
upon  their  admissibihty  :  "  Suppose,  mstead  of  a  man  landed  at 
Gravesend,  from  a  steamboat,  this  had  been  the  case  of  a  pas- 
senger in  a  ship  bound  to  the  West  Indies,  and  he  were  put 
ashore  on  a  desert  island,  without  food,  and  exposed  to  the  burn- 
ing sun,  and  danger  of  wild  beasts,  or  even  landed  among  sav- 
ages, would  not  evidence  be  receivable  to  show  the  state  of  the 
island  where  he  was  left,  and  the  cu^cumstances  attending  the 
violation  of  the  contract  ? "  ^ 

Elements  of  damage  foe  personal  touts. —  In  actions  for 
torts,  personal  injuries,  and  injuries  to  relative  rights,  are  fre- 
quently in  question ;  then,  every  particular  and  phase  of  the 
injury  may  enter  into  the  consideration  of  the  jiu-y,  in  estimat- 
ing damages ;  loss  of  time,  mth  reference  to  injured  party's 
condition  and  abihty  to  earn  money  in  his  business  or  calling ;  ^ 

'  See  Ward  v.  Smith,  11  Price,  19;  Mo.   323;  Penn.  R.  R.  Co.  t.  Books, 

WiUiams  v.  Vanderbilt,   28   N.   Y.  57  Pa.  St.  339;  Ward  v.  Vanderbilt, 

217;  Jones  v.  Steamship  Cortes,  17  4  Abb.   App.  Dec.  521;  Walker  v. 

Cal.  487.  Erie  R'y  Co.  63  Barb.  260;  McKinley 

*  Coppin  V.  Braithwaite,  8  Jur.  875;  v.  Chicago,  etc.  R.  R.  Co.  44  Iowa, 

see  Rose  v.  Beattie,  2  N.  &   McC.  314;  Pittsburgh,   etc.    R.    R.  Co.  v. 

538.  Andrews,  39  Md.  329;  Toledo,  etc.  R. 

« Welch    V.   Ware,    32    Mich.   77;  R.  Co.  v.  Boddeley,  54  111.  19 
Whalen  v.  St.  Louis  R.  R.  Co.  60 


ELEMENTS    OF    DA:MAGE,  159 

his  loss  from  permanent  impairment  of  faculties ;  his  pain  and 
suffering,  disfigurement,  and  expenses.^ 

Right  to  compels atiox  for  tort  axd  breach  of  contract, 
INDEPENDENT  OF  MOTIVE. —  So  far  as  pecuiiiary  elements  of  dam- 
age, and  full  compensation  for  injury,  are  concerned,  either  in 
actions  of  tort  or  for  breach  of  contract,  the  right  of  recovery  is 
■wholly  independent  of  the  motive  which  induced  the  act  or 
omission  which  constitutes  the  cause  of  action,^  In  tort,  the 
motive  may  increase  the  injury,  and  give  a  right  to  greater 
compensation ;  but,  in  actions  upon  contract,  this  can  seldom 
occur,  because  contracts  are  not  often  made  for  such  objects 
that  a  breach  can  be  committed  in  such  manner  as  to  involve 
other  than  pecuniary  consequences.  In  cases  of  tort,  if  the 
defendant's  motive  does  not  enhance  the  actual  injmy,  it 
cannot  necessitate  the  allowance  of  larger  damages  to  compen- 
sate it ;  though,  by  possibility,  it  may  afford  cause  for  imposing 
exemplary  damages. 

Distinctions  made  for  bad  motive. —  Important  distinctions, 
however,  are  made  against  parties  who  break  their  contracts,  as 
well  as  against  wrongdoers,  where  the  cause  of  action  originates 
in  a  bad  motive.  On  executory  contracts,  for  the  sale  of  land, 
the  vendor,  who  wilf  uUy  breaks  his  contract,  or  is  unable  to 
fulfil,  for  causes  kuown  to  him  when  he  entered  into  the  contract, 
wiU  be  subject  to  damages,  for  the  loss  of  the  bargain ;  ^  while  a 

lid.;  Memphis  v.  "Wliitfield,  44  v.  Overley,  30  Ga.  241;  Smith  v. 
Bliss.  4G6;  Jolinson  v.  Wells,  Fargo  Holcomb,  99  Mass.  553;  Ford  v. 
&  Co.  6Nev.  224;  Mulao^vlley  V.  Illi-  Jones,  62  Barb.  484;  Hamilton  v. 
nois,  etc.  R.  R.  Co.  36  Iowa,  462;  Third  Av.  R.  R.  Co.  53  N.  Y.  25;  Hoi- 
Mason  V.  Inhabitants  of  Ellsworth,  yoke  v.  Grand  T.  R'y  Co.  48  N.  H. 
32  Me.  271;  Morse  v.  Auburn,  etc.  R.  541;  City  of  Ripon  v.  Bittel,  30  Wis. 
R.  Co.  10  Barb.  621;  Lucas  v.  FHnn,  614;  Moore  v.  Cent.  R.  R.  47  Iowa, 
35  Iowa,  9;  Stewart  v.  City  of  Ripon,  688;  Ballou  v.  Farnum,  11  Allen,  73; 
38  Wis.  584;  West  v.  Forrest,  22  Mo.  Norris  v.  Nones,  46  Vt.  587;  Jolmson 
344;  Filer  v.  N.  Y.  Cent.  IR.  R.  Co.  49  v.  Holyoke,  105  Mass.  80. 
N.  Y,  42;  DonneU  v.  Saudford,  11  -Ki-om  v.  Schoonmaker,  3  Barb. 
La.  Ann.  645;   Lynch  v.  Knight,  9  647. 

H.  L.  C.  577;  Sliiner  v.  Moran,  2  Mo.  ^p^nipelly  v.  Phelps,  40  N.  Y.  59; 

App.  47;  Ashcroft  v.   Chapman,  38  Bush  v.  Cole,  28  N.  Y.  261;  Drake  v. 

Conn.  230;  Seger  v.  Barkhampsted,  Baker,  34  X.  J.  L.  358;   Plummer  v. 

22  Conn.  290;  Penn.  &  O.  C.  C.  Co.  Rigden,   78    111.    222;   Stevenson    v. 

V.   Graham,    63  Pa.    St.  290;  Smith  Harrison,    3    Litt.    170;    Hammond 


160 


COMPENSATION. 


vendor  who,  in  good  faith,  and  without  fault,  finds  himself 
unexpectedly  unable  to  fulfil,  is  only  liable  to  refund  the  con- 
sideration, with  interest  and  expenses.^ 

A  quantum  meruit  claun,  for  services  which  were  rendered  in 
part  performance  of  a  special  contract,  not  completely  per- 
formed, has  been  made,  in  some  jurisdictions,  to  depend  on  the 
motive  of  the  servant  or  contractor,  in  his  abandonment  of  the 
contract ;  and  compensation,  for  part  performance,  has  been  al- 
lowed only  to  the  laborer  or  contractor  who  has  acted  in  good 
faith ;  has  broken  his  contract  through  inabihty  or  mistake ;  and 
denied  to  the  party  who  has  wilfully  and  selfishly  abandoned  the 
contract.^  Other  cases  may  be  cited  where  a  more  liberal  scope 
is  allowed,  in  estimating  damages,  for  a  fraudulent  or  wanton 
violation  of  contract,  than  is  ordinarily  given,  in  the  absence  of 
the  element  of  fraud,^ 

The  motive  with  which  a  wrong  is  done  in  some  cases  affects 
the  rule* by  which  compensation  is  measured  or  losses  estimated. 


V.  Hannin,  SI  Mich,  374;  Allen  v. 
Atkinson,  21  Mich.  351;  Foley  v. 
McKeegan,  4  Iowa,  1 ;  Engel  v.  Fitch, 
9  B.  &.  S.  85;  10  B.  &  S.  738. 

iFlureau  v.  Thornhill,  1  W.  Bl. 
1078;  Walker  v.  Moore,  10  B.  &  C. 
416;  Sikes  v.  Wild,  1  B.  &  S.  587;  4 
B.  &  S.  431;  Bain  v.  Fathergill,  L. 
R.  6  Ex.  59;  L.  R.  7  H.  L.  158; 
McNair  v.  Compton,  35  Pa.  St.  23; 
Conger  v.  Weaver,  20  N.  Y.  140. 

2  Yeats  V.  Ballentine,  56  Mo.  530; 
KeUy  V.  Bradford,  33  Vt.  35;  Mer- 
row  V.  Hnntoon,  25  Vt.  7;  Austin  v. 
Austin,  47  Vt.  311;  Barker  v.  T.  &  R. 
R.  R.  Co.  27  Vt.  766;  Britton  v. 
Turner,  6  N.  H.  495;  Sinclair  v.  Tall- 
madge,  35  Barb.  602;  Hay  ward  v. 
Leonard,  7  Pick.  181;  Atkins  v.  Barn- 
stable, 97  Mass.  428;  Snow  v.  Ware, 
13  Met.  42;  McKinney  v.  Springer,  3 
Ind.  59;  Porter  v.  Woods,  3  Humph. 
56;  McDonald  v.  Montague,  30  Vt. 
357;  Cullen  v.  Sears,  112  Mass.  299; 
Cardell  v.  Bridge,  9  Allen,  355; 
Walker  v.   Orange,   16  Gray,    193; 


Patnote  v.  Sanders,  41  Vt.  66;  Veazie 
V.  Bangor,  51  Me.  509;  Luton  v. 
King,  19  N.  H.  280;  Bertrand  v. 
Byrd,  5  Ark.  651;  WUson  v.  Wagar, 
26  Mich.  452;  Horn  v.  Batchelder,  41 
N.  H.  86;  Tait  v.  Sherman,  10  Iowa, 
60;  B.  &  O.  R.  R.  Co.  v.  Lafferty,  2 
W.  Va.  104;  Gleason  v.  Smith,  9 
Cush.  484;  Thornton  v.  Place,  1 
Mood.  &  Ry.  218;  Newman  v. 
McGregor,  5  Ohio,  349;  Carroll  v. 
Welch,  26  Tex.  147;  HUlyard  v. 
Crabtree,  11  Tex.  264;  Dermott  v. 
Norris  v.  Jones,  23  How.  U.  S.  220; 
School  Dist.  12  Me.  293. 

^Dewint  v.  Wiltse,  9  Wend.  325; 
Jeffrey  v.  Bigelow,  13  Wend.  518; 
Chitty  on  Conts.  684;  Sondes  v. 
Fletcher,  5  B.  &  Aid.  835;  Rose  v. 
Beattie,  2  Nott  &  McC.  538;  Nurse 
V.  Barns,  T.  Raym.  77:  Stuart  v.  Wil- 
kins,  Doug.  18;  Williams  v.  Allison, 
2  East,  446;  Ferrand  v.  Bonchall, 
Harp.  83;  Mullett  v.  Mason,  L.  R.  1 
C.  P.  559;  Smith  v.  Thompson,  8  C. 
B.  44. 


ELEMENTS    OF    DAMAGE.  IGl 

"Where  there  is  fraud  or  other  intentional  wrong,  there  is  not  the 
same  strictness  to  exclude  remote  and  uncertain  damages,  even 
"where  punitory  damages  are  not  involved.  Where  the  damages 
are  certain,  as  for  the  taking  or  destruction  of  property  having  a 
well-lvnown  and  provable  value,  the  rule  of  compensation  is 
generally  the  same,  whether  the  loss  of  the  property  is  by  tort 
or  by  breach  of  contract,  and  whether  the  wrong  was  Avilf  ul  or 
not.  But  there  is  a  more  liberal  allowance  of  damages  where 
the  tort  is  an  aggressive  one,  and  the  entire  damages,  or  some 
part  of  them,  are  not  capable  of  measurement  by  some  standard 
of  value,  or  fixed  and  definite  rule.  This  is  justified  not  only  on 
the  ground  that  the  wrong  was  wilful  or  mahcious,  but  on  cer- 
tain considerations  which  emphasize  the  distinction  between 
uncertain  dp  nages  caused  by  torts  and  by  breaches  of  contracts 
generally .Hf^  Contracts  are  made  only  by  the  mutual  consent  of 
the  respective  parties ;  and  each  party  for  a  consideration 
thereby  consents  that  the  other  shall  have  certain  rights  as 
against  him  which  he  would  not  otherwise  possess.  In  enter- 
ing into  the  contract  the  parties  are  supposed  to  understand  its 
legal  effect,  and  consequently,  the  limitations  which  the  law,  for 
the  sake  of  certainty,  has  fixed  for  the  recovery  of  damages  for 
its  breach.  If  not  satisfied  with  the  risk  which  these  rules  im- 
pose, the  parties  may  decMne  to  enter  into  the  contract,  or  may 
fix  then-  own  rule  of  damages,  when,  in  their  nature,  the  amount 
must  be  uncertain.  Hence  when  suit  is  brought  upon  such 
contract,  and  it  is  found  that  the  entire  damag-es  actually  sus- 
tained cannot  be  recovered  without  a  violation  of  such  rules, 
the  deficiency  is  a  loss,  the  risk  of  which  the  party  voluntarily 
assumed  on  entering  into  the  contract,  for  the  chance  of  benefit 
or  advantage  which  the  contract  would  have  given  hhn  in  case 
of  perfonnance.  His  position  is  one  in  which  he  has  voluntarily 
contributed  to  place  himself,  and  in  which,  but  for  his  own  con- 
sent, he  could  not  have  been  placed  by  the  wrongful  act  of  the 
opposite  party  alone./  Again,  in  a  majority  of  cases  upon  con- 
tract, there  is  little  difficulty  from  the  nature  of  the  subject,  in 
finding  a  rule  by  which  substantial  compensation  may  be  readily* 
esthnated ;  and  it  is  only  in  those  cases  where  this  cannot  be' 
done,  and  wlierc,  from  the  nature  of  the  stipulations  or  the  sub- 
ject-matter, the  actual  damages  resulting  from  a  breach  are 
Vol.  I  — 11 


162  COMPENSATION. 

more  or  less  uncertain  in  their  nature,  or  diflcult  to  be  shown 
with  accuracy  by  the  evidence,  under  any  definite  rule,  that 
there  can  be  any  great  failure  of  justice  by  adhering  to  such 
rule  as  will  most  nearly  approximate  to  the  desired  result.  And 
it  is  precisely  in  these  classes  of  cases  that  the  parties  have  it  in 
their  power  to  protect  themselves  against  any  loss  to  arise  from 
such  uncertainty,  by  estimating  their  own  damages,  in  the  con- 
tract itself,  and  providing  for  tliemselves  the  rules  by  which  the 
amount  shall  be  measured  in  case  of  a  breach ;  and  if  they 
neglect  this,  they  may  be  presumed  to  have  assented  to  such 
damages  as  may  be  measured  by  the  rules  which  the  law,  for 
the  sake  of  certainty,  has  adopted.|f  I^one  of  these  considera- 
tions have  any  bearing  in  an  action  purely  of  tort.  The  injured 
party  has  consented  to  enter  into  no  relation  to  the  wrongdoer 
by  which  any  hazard  of  loss  should  i3e  incurred ;  nor  has  he  re- 
ceived any  consideration,  or  chance  of  benefit  or  advantage,  for 
the  assumption  of  such  hazard ;  nor  lias  the  wrongdoer  given 
any  consideration,  nor  assumed  any  risk,  in  consequence  of  any 
act  or  consent  of  his.  The  injured  party  has  had  no  opportu- 
nity to  protect  himself  by  contract  against  any  uncertainty  in 
the  estimate  of  damages ;  no  act  of  his  has  contributed  to  the  ■ 
injury ;  he  has  yielded  nothing  by  consent ;  and,  least  of  aU, 
has  he  consented  that  the  wrongdoer  might  take  or  injure  his 
property,  or  deprive  him  of  his  rights,  for  such  sum  as,  by  the 
strict  rules  which  the  law  has  established  for  the  measurement  of 
damages  in  actions  upon  contract,  he  mav  be  able  to  show  with 
certainty  he  has  sustained  by  such  taking  or  injury.  Especially 
would  it  be  unjust  to  presume  such  consent,  and  to  hold  him 
to  the  recovery  of  such  damages  only  as  may  be  measured  with 
certainty  by  fixed  and  definite  rules,  when  the  case  is  one 
which,  from  its  very  nature,  affords  no  elements  of  certainty, 
by  which  the  loss  he  has  actually  suffered  can  be  shovrn  with 
accuracy  by  any  evidence  of  which  the  case  is  susceptible.  Kor 
is  he  to  blame  because  the  case  happens  to  be  one  of  this  char- 
acter. He  has  had  no  choice,  no  selection.  The  nature  of  the 
case  is  such  as  the  wrongdoer  has  chosen  to  make  it ;  and  upon 
every  consideration  of  justice,  he  is  the  party  who  should  be 
made  to  sustain  all  the  risk  of  loss  w^hich  may  arise  from  the 
■uncertainty  pertaining  to  the  natm^e  of  the  case,  and  the  diffi- 


ELEMENTS    OF   DAIMAGE.  1(]3 

culty  of  accumtely  estimating  the  results  of  his  own  wrongful 
act.i 

How   MOTIVE    AFFECTS    CONSEQUENCES    OF    CONTUSION  OF  GOOD?. 

In  case  of  a  wilful  confusion  of  goods ;  that  is,  where  one  wil- 
fully intermixes  his  money,  corn  or  hay,  with  that  of  another 
man,  without  his  approbation  or  knowledge,  or  casts  gold  in 
like  manner  into  another's  melting  pot  or  crucible,  the  law,  to 
guard  against  fraud,  aUows  no  remedy  in  such  case  according  to 
the  older  authorities,  but  gave  the  entire  property  without  any 
account  to  him  whose  original  dominion  was  invaded.^  There  is 
a  tendency  in  the  later  authorities,  however,  to  confine  the  for- 
feiture to  cases  where  otlierwise  the  innocent  owner  in  the  ad- 
mixture cannot  be  adequately  protected.  It  accords  with  the 
preceding  views,  to  charge  the  party  whose  fraudulent  or  tor- 
tious act  caused  the  confusion  with  the  duty  of  separating  and 
identifying  his  own  ;  and  with  any  loss  resulting  from  his  ina- 
bihty  to  do  so.  And  greater  loss  cannot  properly  be  charged  to 
him  for  the  purpose  of  compensation.  A  person  is  not  damni- 
fied l)y  mixing  his  property  in  a  mass,  if  from  it  he  can  with- 
draw what  will  be  substantially  and  to  aU  intents  and  purposes 
identical  with  it ;  and  where  a  man  can  obtain  aU  that  he  is 
entitled  to,  in  order  to  put  him  in  full  enjoyment  of  his  own, 
the  law  should  not  bestow  on  him  the  property  of  another.^    A 

'  Per  Cliristiancy,  J.,  in  Allison  v.  377;  Ringgold  v.  Ringgold,  1  Har.  & 

Chandler,   11  Mich.  552;  Sharon  v.  Gill,  11;  Bryant  v.  Ware,  30  Me.  295 ; 

Mosher,    17     Barb.   518;    Guille    v.  Hesseltine  v.  Stockwell,  30  Me.  237; 

Swan,  19  Johns.  381;  Gate  v.  Gate,  Dillingham  v.  Smith,   30  Me.    370; 

50  N.  H.  144.  .  Stearns  v.   Raymond,   26    Wis.    74; 

"2  Black.  Gom.  404;  Ward  V.  Eyre,  Single    v.    Barnard,    29    Wis.    463; 

2  Bulst.  323;  Ryder  V.  Hathaway,  21  Morgan     v.   Gregg,   46    Barb.    183; 

Pick.  298;  Willard  v.  Rice,  11  Met.  Schulenburg  v.   Hamman,    2  Dill. 

493;  Hesseltine  v.  Stockwell,  30  Me.  398:  S.  G.  21  Wall.  44;  The  DistiUed 

237;  Stephenson  v.  Little,  10  Mich.  Spirits,  11  Wall.  356;    Robinson  v. 

433.  Holt,  39  N.  H.  557;  Stuart  v.  Phelps. 

'Per  Campbell,  J.,  in  Stephenson  39  Iowa,  14;  Moore  v.  Bowman,  47 

V.  Little,  supra;  Hart  v.  Ten  Eyck,  N.  H.  494;  Seavy  v.  Dearborn,  19  N. 

2  Johns.  Gh.  62;  Roth  v.  Wells,  29  H.  351;  Walcott  v.  Keith,  22  N.  H. 

N.  Y.  486;  Frost  v.  Willard,  9  Barb.  196;  Wilson  v.  Lane,  33  N.  H.  466; 

440;    Nowlen  v.   Colt,   6    Hill,   461;  Gilman  v.  HiU,  36  N.  H.  311;  The 

Samson    v.    Rose,    65    N.    Y.    411;  Massachusetts  L.  Ins.  Co.  v.  Garpen- 

Brackenridge  v.  Holland,  2  Blackf.  ter,  2  Sweeney,  734;  Goodenow  v. 


1C4 


COTVrPENSATIOIT. 


reasonable  rule,  wliicli  lias  much  authority  to  support  it,  is  that 
one  who  has  confused  his  own  property  witli  that  of  otiier  per- 
sons, shall  lose  it  when  there  is  a  concurrence  of  these  two 
things :  first,  that  he  has  fraudulently  caused  the  confusion ; 
and  secondly,  that  the  rights  of  the  other  party  after  the  con- 
fusion, are  not  capable  otherwise  of  complete  protection.^  But 
the  ]">rinciple  of  forfeiture,  except  when  necessary  to  save  the 
rights  of  the  innocent  owner,  if  there  has  been  a  fraudulent 
admixture,  cannot  be  said  to  be  ehminated  from  om*  juris- 
prudence.-    It  is  a  doctrine  to  prevent  fraud. ^ 


Where  pkopertt  sued  foe  imped ved  by  weongdoee. —  In 
another  class  of  cases,  closely  analogous  to  those  of  confusion 
of  goods,  where  a  tortious  taker  of  property,  has,  by  his  labor, 
enhanced  its  value,  the  owner's  title  not  being  divested,  he  may 
retake  the  same,  subject  to  certain  hmitations,  in  its  improved 
condition.*    He  is  precluded  from  exercising  this  right  when 


Snyder,  3  G.  Greene,  599:  Wood  v. 
Faies,  24  Pa.  St.  246;  Wooley  v. 
CampbeU,  37  N.  J.  L.  163;  Bond  v. 
Ward,  7  Mass.  123;  Smith  v.  San- 
born, 6  Gray,  134;  Armstrong  v.  Mc- 
Alpin,  18  Ohio  St.  184;  Holbrook  v. 
Hyde,  1  Vt.  286;  Treat  v.  Barb,  7 
Conn.  274;  Tafts  v.  McClintock,  28 
Me.  424;  Colwill  v.  Eeeves,  2  Camp. 
575;  Albee  v.  Webster,  16  N.  H.  362 
Weil  V.  SUverstone,  6  Bush,  698 
WelUngton  v.  Sedgwick,  12  Cal.  469 
Sawyer  v.  Merrill,  6  Pick.  478 
Shumway  v.^Eutter,  8  Pick.  443 
Ames  V.  Missisippi  Boom  Co.  8 
Minn.  467;  Panton  v.  Panton,  15 
Ves.  440;  Bartlett  v.  Hamilton,  46 
Me.  435;  Leonard  v.  Belknap,  47  Vt. 
602;  Wyly  v.  Burnett,  43  Ga.  438 
Griffith  V.  Bogardus,  14  Cal.  410 
Beach  v.  Forsyth,  14  Barb.  499 
Frey  v.  Demarest,  16  N.  J.  Eq.  236 
Elmer  v.  Loper,  25  N.  J.  Eq.  475 
Alley  V.  Adams,  44  Ala.  609 
Adams  v.  Wilds,  107  Mass.  123 
Hamilton  v.  Rogers,  18  Md.  30 
Cochran  v.  Flint,  57  N.  H.  514;  Gray 


V.  Parker,  38  Mo.  160;  Fowler  v. 
Hoffman,  31  Mich.  215;  Fellows  v. 
Mitchel,  1  P.  Wms.  81;  Taylor  v. 
Plumer,  3  M.  &  S.  562;  3  Kent's 
Com.  365. 

"Id. 

2  Ryder  v.  Hathaway,  21  Pick.  298; 
The  Idaho.  93  U.  S.  575;  Jenkins  v. 
Stanker,  19  Wis.  126;  Root  v.  Bon- 
nema,  22  Wis.  539;  Stephenson  v. 
Little,  10  Mich.  433;  Johnson  v.  Bal- 
lon, 25  Mich.  460;  Willard  v.  Rice,  11 
Met.  493;  Lupton  v.  Wliite,  15  Ves. 
442;  Wingate  v.  Smith,  20*  Me.  287; 
Low  V.  Martin,  18  lU.  286;  Dole  v. 
Olmstead,  36  111.  150;  Loomis  v. 
Greer,  7  Greenlf.  386;  McDoweU  v. 
Russell,  37  Pa.  St.  164;  Beach, v. 
Schmeiltz,  20  lU.  185;  Jewett  v. 
Dringer,  39  N.  J.  Eq.  291;  Wooley 
V.  Campbell,  37  N.  J.  L.  163. 

^  Wooley  V.  Cami)bell,  supra. 

4  Final  v.  Backus,  18  Mich.  218; 
Brown  v.  Sax,  7  Cow.  95;  Barnett  v. 
Thompson,  13  Ired.  L.  146;  Rice  v. 
HoUenbeck,  19  Barb.  664;  Pierrepont 
V.  Barnard,  5  Barb.  364;   Smith  v. 


ELEMENTS   OF   DAMAGE.  165 

property  so  taken  has  lost  its  identity.  But  the  change  which 
will  be  deemed  to  destroy  identity  where  the  wi'ongdoer  took 
the  property  in  good  faith,  supposing  it  to  be  his  own,  or 
througli  some  other  mistake  or  inadvertence,  vnR  not  so  destroy 
it  as  to  determine  the  owner's  title  and  put  him  to  his  action  for 
damages,  where  the  taldng  was  an  intentional  wrong.  Wliile 
the  authorities  are  in  great  confusion  on  this  subject,  there  is  a 
manifest  discrimination  against  the  wilful  wrongdoer.  By  the 
civil  law  and  the  common  law.  ahke,  the  owner  of  the  original 
materials  is  precluded  from  following  and  reclaiming  the  prop- 
erty after  it  has  undergone  a  transmutation  which  converts  it 
into  an  article  substantially  diflerent,^  as  by  maldng  wine  out  of 
another's  grapes,  oil  from  his  olives,  or  bread  from  his  wheat ; 
but  the  product  belongs  to  the  new  operator,  who  is  oidy  to 
make  satisfaction  to  the  former  proprietor  for  the  materials 
converted.^  And  a  Yery  large  increase  in  the  value  of  the 
property  by  labor  has  been  held  to  have  the  same  effect  in  favor 
of  such  an  involuntary  wrongdoer.^  The  law  allows  the  wrong- 
doer in  such  cases  to  make  title  by  his  own  wrong ;  because  it 
was  not  a  ^vilful  wrong ;  to  prevent  his  suffering  a  loss  of  his 
labor ;  and  not  because  of  the  supposed  unpossibihty  of  tracing 
the  original  materials  into  the  more  valuable  property  made 
therefrom.  The  authorities,  however,  are  so  much  in  conflict 
that  no  test  can  be  deduced  from  them,  by  which  it  can  be  de- 
termined what  change  will  suffice  to  destroy  the  identity  of 
property  so  as  to  prevent  the  owner  from  retaking  it.  It  is 
not  enough  that  trees  are  converted  into  saw  logs  or  timber ;  ^ 
into  rails  or  posts  ;^  into  raih-oad  ties  or  staves  or  fire  wood;® 

Gonder,  23  Ga.  353;  Curtis  v.  Groat,  ^-^retherbee  v.  Green,  supra. 

6  Johns.  168;   Halleck  v.   Mixer,  16  ^Pierrepont  v.  Barnard,  5  Barb. 

Cal.  574;  Moody  v.  Whitney,  34  Me.  364;    Symes    v.    OUver,    13    Mich. 

5C3;    Betts    v.    Lee,    5   Jolms.    348;  202;    Grant    v.    Smith,     26    Mich. 

Chandler  v.   Edson,   9  Johns.    363;  201. 

Riddle  V.  Driver,  12  Ala,  590;  Hyde  ^  Snyder   v.  Vaux,  3  Rawle,  423; 

V.  Cookson,  21  Barb.  92;   Dunn  v.  Millar  v.  Humphries,  2  A.  K.  Marsh. 

O'Neal,  1  Smeed.  106;  Silsbury  v.  Mc-  446. 

Coon,  3  N.  Y.  379.  "Smith   v.    Gonder,    22   Ga.    353; 

'  2  Bl.  Com.  404.  Heard  v.  James,  49  Miss.  236;  Brewer 

"Id.;  Wetherbee  v.  Green,  22 Mich.  v.  Fleming,  51  Pa.  St.  102;  Moody  v. 

311;  Forsyth  v.  Wells,  41  Pa.  St.  291;  Whitney,  34  Me.  563. 

Swift  V.  Barnum,  23  Conn.  523. 


1G6 


COMPENSATION. 


into  shingles;^  that  saw  logs  are  made  into  boards,^  or  fire 
wood'^  into  coal.* 


'  Betts  V.  Lee,  5  Johns.  348;  Chand- 
ler V.  Edsou,  9  Johns.  262. 

-  Brown  v.  Sax,  7  Cow.  95;  Baker 
V.  "Wheeler,  8  Wend.  505;  Davis  v. 
Easley,  13  111.  193. 

'''Eastman  v.  Harris,  4  La.  Ann. 
193. 

"  Curtis  V.  Groat,  6  John.  109.  In 
Silsbury  v.  McCoon,  3  N.  Y.  386, 
Ruggles,  J.,  said:  "In  one  case  (5 
Hen.  7,  fol.  15)  it  is  said  that  the 
owner  may  reclaim  the  goods  so 
long  as  they  may  be  known,  or  in 
other  words,  ascertained  by  inspec- 
tion. But  this,  in  many  cases,  is  by 
no  means  the  best  evidence  of  iden- 
tity; and  the  examples  put  by  way 
of  illustratio'i  serve  rather  to  dis- 
prove than  to  establish  the  rule. 
The  court  say  that  if  grain  be  made 
into  malt,  it  cannot  be  reclaimed  by 
the  owner,  because  it  cannot  be 
known.  But  if  cloth  be  made  into 
a  coat,  a  tree  into  squared  timber,  or 
iron  into  a  tool,  it  may.  Now,  as  to 
the  cases  of  the  coat  and  the  timber, 
they  may  or  may  not  be  capable  of 
identification  by  the  senses  merely; 
and  the  rule  is  entirely  uncertain  in 
its  application;  and  as  to  the  iron 
tool,  it  certainly  cannot  be  identified 
as  made  of  the  original  material, 
without  other  evidence.  This  illus- 
tration, therefore,  contradicts  the 
rule.  In  another  case  (Moore's  Rep. 
20),  trees  wei'e  made  into  timber, 
and  it  was  adjvidged  that  the  owner 
of  the  trees  might  reclaim  the  tim- 
ber, '  because  the  greater  part  of  the 
substance  remained.'  But  if  this 
were  the  true  criterion,  it  would 
embrace  the  cases  of  wheat  made 
into  bread,  mUk  into  cheese,  grain 
into  malt,  and  others  which  are  put 
in  the  books  as  examples  of  a  change 
of  identity.     Other  writers  say  tliat 


when  the  thing  is  so  changed  that  it 
cannot  be  reduced  from  its  new 
form  to  its  former  state,  its  identity 
is  gone.  But  this  would  include 
many  cases  in  wliich  it  lias  been  said 
by  tlie  courts  that  the  identity  is  not 
gone;  as  the  cases  of  leather  made 
into  a  garment,  logs  made  into  lum- 
ber or  boards,  cloth  into  a  coat,  etc. 
There  is  therefore  no  definite  settled 
rule  on  this  question.  .  .  .  There 
is  no  satisfactory  reason  why  the 
wrongful -conversion  of  the  original 
materials  into  an  article  of  a  differ- 
ent name  or  a  different  species 
should  work  a  transfer  of  the  title 
from  the  true  owner  to  the  tres- 
passer, provided  the  real  identity  of 
the  thing  can  be  traced  by  evidence. 
The  difiiciilty  of  proving  the  iden- 
tity is  not  a  good  reason.  It  relates 
merely  to  the  convenience  of  the 
remedy,  and  not  at  all  to  the  right. 
Tliere  is  no  more  difficulty  or  uncer- 
tainty in  proving  that  the  whisky  in 
question  was  made  of  Wood's  corn, 
than  there  would  have  been  in  prov- 
ing that  the  plaintiff  had  made  a 
cup  of  his  gold,  or  a  tool  of  his 
iron;  and  yet,  in  those  instances, 
according  to  the  Enghsh  cases,  the 
proof  would  have  been  unobjection- 
able. In  aU  cases  where  the  new 
product  cannot  be  identified  by  mere 
inspection,  the  original  materials 
must  be  traced  by  the  testimony  of 
witnesses  from  hand  to  hand 
through  the  process  of  transfor- 
mation." 

Cooley,  J.,  in  Wetherbee  v.  Green, 
above  cited,  said  of  making  out  the 
identity  by  the  senses,  that  it  is 
obviously  a  very  unsatisfactory  test, 
and  in  many  cases  would  wholly  de- 
feat tlie  iiurpose  which  the  law  has 
in  view  in  recognizing  a  change  of 


ELEMENTS    OF   D^\:SIAGE. 


IGT 


Tliere  is  not  the  same  difficulty  under  the  authorities  in  deter- 
mining when  the  identity  of  the  property  is  lost  where  the 
tortious  taldng  and  conversion  were  fraudulent.  In  such  a  case, 
it  has  been  held  in  New  York  that  the  wrongdoer  is  not  permit- 
ted to  acquire  property  in  the  goods  of  another  by  any  change 
wrought  in  them  by  his  labor  or  skill,  however  great  the  change 
may  be,  provided  it  can  be  proved  that  the  improved  article  was 


title  in  any  of  these  cases.  That 
purpose  is  not  to  establish  any  arbi- 
trary distinctions,  based  upon  mere 
Ijhysical  reasons,  but  to  adjust  the 
redress  afforded  to  the  one  party,  and 
the  penalty  inflicted  uj)on  the  other, 
as  near  as  circumstances  will  per- 
mit, to  the  rvdes  of  substantial 
justice. 

"It  may  often  happen  that  no  dif- 
ficulty may  be  experienced  in  de- 
termining the  identity  of  a  piece  of 
timber  which  has  been  taken  and 
buUt  into  a  house;  but  no  one  dis- 
putes that  the  right  of  the  original 
owner  is  gone  in  such  a  case.  A 
particular  piece  of  wood  might  per- 
haps be  traced  without  trouble  into 
a  church  organ,  or  other  equally 
valuable  article;  but  no  one  would 
defend  a  rule  of  law  which,  because 
the  identity  could  be  determined  by 
the  senses,  would  permit  the  owner 
of  the  wood  to  appropriate  a  musical 
instrument,  a  hundred  or  a  thousand 
times  the  value  of  the  original  ma- 
terials, when  the  party  wlio,  under 
like  circumstances,  has  doubled  the 
value  of  another  man's  corn  by  con- 
verting it  into  malt,  is  i^ermitted  to 
retain  it,  and  held  Uable  for  the 
original  value  only.  Such  distinc- 
tions in  the  law  would  be  without 
reason,  and  could  not  be  tolerated. 
When  the  right  to  the  improved  arti- 
cle is  the  point  in  issue,  the  question, 
liow  much  the  property  or  labor  of 
each  has  contributed  to  make  it 
what  it  is,  must  always  be  one  of 
fu-st  importance.     The  owner  of  a 


beam  built  into  the  house  of  another 
loses  his  property  in  it,  because  the 
beam  is  insignificant  in  value  or 
importance  as  compared  to  that  to 
which  it  has  become  attached,  and 
the  musical  instrument  belongs  to 
the  maker  rather  than  to  the  man 
whose  timber  was  used  in  making 
it, —  not  because  the  timber  cannot 
be  identified,  but  because  in  bring- 
ing it  to  its  jiresent  condition  the 
value  of  the  labor  has  swallowed  up 
and  rendered  insignificant  the  value 
of  the  original  materials.  The  labor, 
in  the  case  of  the  musical  instru- 
ment, is  jiist  as  much  the  i^rincipal 
thing  as  the  house  is  in  the  other 
case  instanced;  the  timber  appro- 
priated is  in  each  case  comparatively 
unimportant.  No  test  which  satis- 
fies the  reason  of  the  law  can  be 
applied  in  the  adjustment  of  the 
question  of  title  to  chattels  by  ac- 
cession, unless  it  keeps  in  view  the 
circumstance  of  relative  values. 
When  we  bear  in  mind  the  fact  that 
what  the  law  aims  at  is  the  accom- 
plishment of  substantial  equity,  we 
shall  readily  jjerceive  that  the  fact 
of  the  value  of  the  materials  having 
been  increased  a  hundred  fold,  is  of 
more  importance  in  the  adjustment 
than  any  ^hemical  change  or  me- 
chanical •  transformation,  wliich, 
however  radical,  neither  is  expensive 
to  the  party  making  it,  nor  adds  ma- 
terially to  the  value."  See  Silsbury 
V.  McCoon,  4  Denio,  332;  Hcrdic  v. 
Young,  55  Pa.  St.  176;  Single  v. 
Schneider,  30  Wis.  570. 


les 


COMPENSATION. 


made  from  the  original  material.^  The  action  was  trover  in 
which  this  doctrine  was  held,  and  the  value  of  whisky  was  re- 
covered by  the  owner  of  the  corn  from  which  it  was  made. 
There  is  a  general  incHnation  elsewhere  to  find  some  middle 
ground  upon  which  the  rights  of  -the  owner  may  be  maintained, 
and  yet  moderate  and  adjust  the  consequences  of  even  a  wilful 
trespass  more  nearly  to  the  standard  of  compensation,  especially 
where  there  is  not  an  actual  retaking  of  the  property,  and  the 
owner  by  choice  or  otherwise  seeks  to  recover  the  value  in 
damatjes.^ 


'Silsbury  v.  McCoon,  supra;  see 
S.  C.  6  HUl,  425;  4  Denio,  332;  Hyde 
V.  Cookson,  21  Barb.  92. 

2  In  Single  v.  Schneider,  24  Wis. 
801,  Paine,  J.,  said:  "There  is  proof 
tending  to  show  a  mistake  as  to  a 
part  (of  the  timber  tortiously  cut  by 
defendant  on  the  plaintiff's  land). 

.  .  They  are  not  to  be  regarded, 
therefore,  as  wilful  trespassers. 
Upon  these  facts,  it  seems  contrary 
to  the  dictates  of  natural  justice  that 
the  plaintiff  should  be  allowed  to 
wait  quietly  until  the  defendants 
had  manufactvired  the  logs  into 
lumber,  enhancing  their  value  four 
or  five  fold,  and  then  recover  against 
them  that  entire  value.  True,  it  is 
generally  recognized  that  a  wrong- 
doer cannot,  by  the  change  of  an- 
other's i)roperty,  change  the  title. 
Tlie  owner  may  pursue  it,  and  re- 
claim it  specifically  by  whatever  rem- 
edy the  law  gives  him  for  that  pur- 
pose. If  he  gets  it,  it  is  his.  But 
the  apparent  injustice  of  allowing 
one  to  avail  himself  of  the  labor  and 
money  of  another,  in  cases  similar 
to  this,  has  led  to  a  modification  of 
this  stringent  rule  of  ownership, 
wherever  the  question  is  resolved 
into  one  of  mere  compensation  in 
money  for  whatever  injury  the  party 
may  have  suffered."  Tliis  case  came 
before  the  court  again  (30  Wis.  570), 
when  it  appeared  and  was  found  by 


the  jury  that  a  part  of  the  logs  sued 
for  in  the  action,  which  was  replevin, 
were  cut  wilfully,  and  Cole,  J. ,  said : 
' '  The  counsel  for  the  def eudimt  con- 
tends that,  so  far  as  the  measure  of 
damages  is  concerned,  it  is  quite  im- 
material whetlier  the  logs  were  cut 
intentionally  or  through  mistake; 
that  the  damages  given  in .  law  as 
compensation  for  an  injury  should 
be  precisely  commensurate  witli  the 
injury,  neither  more  nor  less;  and 
that  the  plaintiff  is  not  entitled  to 
recover  the  value  of  the  property  in 
its  improved  state,  under  the  circum- 
stances of  this  case.  He  concedes 
tliat,  if  there  was  a,nything  tend- 
ing to  show  that  the  trespass  was 
wanton  or  malicious,  committed  un- 
der circumstances  of  insult  or  aggra- 
vation, then,  upon  the  authorities, 
exemplary  damages  might  be  al- 
lowed in  the  discretion  of  the  jury, 
which  might  exceed  or  fall  below  the 
value  of  the  property  enhanced  by 
the  labor  of  the  defendants.  But  he 
claims  that  when  a  person,  though 
intentionally,  cuts  pine  logs  upon 
the  wild,  unoccupied  land  of  an- 
other, to  say  as  a  matter  of  right, 
the  owner  shall  recover  the  enhanced 
value  of  the  property  manufactured 
into  lumber,  or  into  the  most  ex- 
pensive furniture,  is  a  rule  contrary 
to  the  principles  of  natural  justice, 
and  not  in  accordance  with  the  doc- 


ELEMENTS   OF   DAMAGE. 


169 


And  if  an  actual  retaldng  is  impossible,  or  does  not  take 
place,  and  the  question  is  one  of  mere  compensation  for  the 
property,  the  law  is  not  quite  settled  that  the  improved  value 
may  be  recovered  even  of  a  party  who  intentionally  converted 
it.^  In  such  actions,  the  question  whether  the  property  has  so 
changed  as  to  be  no  longer  capable  of  identification  is  not  im- 
portant. The  wrongdoer  who  has  taken  and  converted  anoth- 
er's property,  through  mistake,  is  chargeable  with  its  iViue  at 
the  time  of  conversion;  and  the  wilful  wrongdoer  by  that 
standard,  or  the  value  at  some  intermediate  point,  or  the  final 
value  of  the  improved  article,  according  to  the  particular  views 
of  the  court.^ 

To  allow  the  owner  of  the  original  materials  to  recover  the 


trine  of  the  common  law.  We  are 
inclined  to  adopt  this  view  of  the 
matter,  although  we  are  awai'e  that 
by  so  doing  we  lay  down  a  rule  in 
conflict  with  some  adjudications 
which  may  be  found.  But  it  seems 
to  us  that,  if  the  owner  is  entirely 
indemnified  for  the  injury  he  has 
sustained,  it  is  quite  immaterial 
wliether  the  logs  were  cut  by  mis- 
take or  intentionally,  unless  in  the 
latter  case  the  trespass  was  of  such 
a  character  as  to  make  the  doctrine 
of  exemplary  damages  applical)!e. 
This  was  the  view  expressed  by  Mr. 
Justice  Paine  in  Weymouth  v.  Chi- 
cago &  Northwestern  R.  R.  Co.  17 
Wis.  550-555;  and  it  seems  to  us  that 
it  is  consonant  with  sound  principle 
and  natural  justice.  It  is  time  that 
was  an  action  of  trover,  and  this  is 
an  action  of  replevin.  But  here  the 
defendants  gave  the  undertaking 
under  the  statute  and  retained  pos- 
session of  the  property.  The  judg- 
ment was  in  the  alternative,  for  the 
delivery  of  the  property  to  the 
plaintiff,  in  case  delivery  could  be 
had,  or  for  its  value.  The  plaintiff 
does  not  really  expect  to  recover  the 
specific  property,  and  therefore  there 


is  no  valid  reason  for  a  distinction 
between  this  case  and  that  of  trover, 
as  regards  the  rule  of  damages;  it 
should  be  the  same  in  both  cases." 
He  restates  with  approbation  the 
views  of  Bronson,  C.  J.,  in  Silsbury 
V.  ilcCoon,  4  Denio,  333;  Herdic  v. 
Young,  55  Pa.  St.  176. 

'  Id. ;  ]\Ioody  v.  Whitney,  34  Me. 
174;  Reed  v.  Fairbauk,  13  G.  B.  729; 
Cush.ing  V.  Longfellow,  26  Me.  308. 

-Martin  v.  Porter,  5  M.  &  W.  351; 
Morgan  v.  Powell,  8  Q.  B.  278; 
Llynoi  v.  Brogden,  L.  R.  11  Eq.  188; 
Maye  v.  Tappan,  23  Cal.  306;  Goller 
V.  Felt,  30  CaJ.  481;  Nesbett  v.  St. 
Paul  L.  Co.  21  Minn.  491;  Foote  v. 
MorreU,  54  N.  H.  490;  Adams  v. 
Blodgett,  47  N.  H.  219;  The  Dresser 
Man.  Co.  v.  Waterson,  3  Met.  9; 
Stockbridge  Iron  Co.  v.  Cone  Iron 
Works,  102  IMass.  80;  Winchester  v. 
Craig,  33  Mich.  205;  Bennett  v, 
Thompson,  13  Ired.  146;  Smith  v. 
Gonder,  23  Ga.  353;  Wood  v.  More- 
head,  3  A.  &  E.  N.  S.  440;  Hyde  v. 
Cookson,  21  Barb.  92;  Heard  v. 
James,  49  Miss.  239;  Riddle  v.  Driver, 
13  Ala.  590;  Greeley  v.  Stilson,  37 
Mich.  153;  see  Isle  Royale  M.  C.  Co. 
v.  Horton,  37  Mich.  333. 


170  COMrENSATION. 

value  increased  by  the  subsequent  labor  of  the  wrongdoer,  is 
to  antagonize  two  fundamental  rights ;  the  right  of  property, 
and  the  right  to  due  compensation  for  injury.  The  law  gives 
its  sanction  to  the  former  by  allowing  the  owner  to  retake  his 
property  by  his  own  act  or  by  the  legal  process  of  replevin,  if 
it  still  exists  and  can  be  found.  Certain  changes  made  in  it, 
or  its  annexation  to  something  else  which  the  law  regards  as 
the  principal,  as  to  certain  wrongdoers,  at  least,  has  been  ac- 
cepted as  putting  an  end  to  the  owner's  rigiit  to  retake  the 
property,  though  it  may  in  fact  exist,  or  what  was  obtained 
from  or  for  it,  is  still  in  the  hands  of  the  wrongdoer,  and  ascer- 
tainable by  testimony.  There  is  no  more  necessity  for  severe 
consequences  to  discourage  trespass  or  tortious  conversion  of 
property  which  the  wrongdoer  improves,  than  that  where  he 
destroys  it  or  retains  it  in  the  same  condition.  The  owner  is 
entitled  to  no  greater  measure  of  reparation  in  the  one  case  than 
in  the  other.  The  wrongdoer  is  no  more  culpable  when  he  im- 
proves the  property  than  when  he  does  not.  Therefore,  since  there 
is  a  recognized,  though  indefinite,  limit  to  the  owner's  right  to  re- 
claim his  property  with  any  accession,  and  this  Mmit  is  short  of 
the  ultimate  point  to  which  testimony  would  enable  him  to  trace 
it,  there  is  no  more  violation  of  the  fundamental  right  of  property, 
by  fixing  that  limit  at  the  point  of  the  first  change,  than  at  any 
subsequent  one.  But  when  the  redi'ess,  which  is  given  to  the 
owner  in  his  suit,  is  the  value,  or  damages  to  compensate  him 
for  the  wrong  of  depriving  him  of  his  property,  the  question  is 
not  one  of  allowing  him  to  retake  his  property,  but  solely  a 
question  of  compensation.  What  is  due  compensation  in  such 
a  case  is  to  be  ascertained  on  the  same  principles  as  in  all  other 
cases ;  the  injured  party  is  to  be  made  good  for  the  loss  he  has 
sustained.  If  his  corn  has  been  taken  he  is  to  be  compensated 
for  corn ;  he  is  no  more  entitled  to  have  its  value  estimated  by 
the  amount  of  whisky  which  has  been,  than  by  the  amount  of 
whisky  that  can  be,  made  from  it,  with  no  deduction  for  the 
manufacture,  or  than  by  the  amount  the  defendant  has  subse- 
quently sold  it  for  in  consequence  of  the  general  appreciation 
of  the  commodity.  The  language  of  Bronson,  C.  J.,  in  the 
reversed  case  in  Kew  York,  is  replete  with  good  sense  and  sound 
principle.     He  says :     "  The  question  is  not,  as  it  has  been  some- 


ELEMENTS    OF   DAJMAGE.  171 

times  artfully  put,  whether  the  common  law  will  allow  the 
owner  to  be  unjustly  deprived  of  his  property,  or  wiU  give 
encouragement  to  a  wilful  trespasser.  It  wiU  do  neither.  But 
in  protecting  the  owner  and  punishing  the  ^\T:ongdoer,  our  law 
gives  such  rules  as  are  capable  of  practical  apphcation,  and  are 
best  calculated  to  render  exact  justice  to  both  parties.  The 
proper  inquiry  is,  in  what  manner,  and  to  what  extent,  should 
the  trespasser  be  punished ;  and  what  should  be  the  kind  and 
measm-e  of  redress  to  the  injured  party.  A  trespasser  who 
takes  iron  ore  and  converts  it  into  watch  springs,  should  not  be 
hanged;  nor  should  he  lose  the  whole  of  the  new  product. 
Either  punishment  would  be  too  great.  Nor  should  the  owner 
of  the  ore  have  the  watch  springs ;  for  it  would  be  more  than  a 
just  measure  of  redress.  Om*  law  has,  therefore,  wisely  pro- 
vided other  remedies  and  punishments.  The  owner  may  retake 
his  ore,  either  -with  or  without  process,  so  long  as  its  identity 
remains ;  and  may  also  recover  damages  for  the  tortious  taldng. 
Or,  without  repossessing  himself  of  the  propert}^,  he  may  have 
an  action  of  trespass,  in  which  the  jury  will  not  fail  to  give  the 
proper  damages.  But  the  law  will  not  allow  the  owner  to  wait 
until  the  ore  has  been  converted  into  a  different  species  of 
property  and  then  seize  the  new  product,  either  with  or  without 
process.  Xor  is  the  value  of  the  new  product  the  measure  of 
damages,  if  he  bring  an  action  of  trespass  or  trover.  Although 
there  will  not  be  many  cases  where  the  difference  between  the 
value  of  the  rude  material  and  the  new  product  will  be  so  strik- 
ing as  in  the  case  which  has  been  mentioned ;  yet,  in  almost 
every  instance  where  the  chattel  has  been  converted  into  a  dif- 
ferent species  of  property,  the  value  of  the  new  product  will  be 
more  than  the  trespasser  ought  to  pay,  or  the  owner  of  the 
chattel  ought  to  receive.  ...  As  an  original  question,  I 
think  the  owner  should  either  reclami  the  property  before  the 
new  possessor  has  greatly  increased  its  value,  either  by  bestow- 
ing his  labor  and  skill  upon  it,  or  by  joining  it  to  other  materials 
of  his  own  ;  or  else  that  he  should  be  restricted  to  a  remedy  by 
action  for  the  damages  which  he  has  sustained."  ^ 

'  Silsbury  v.  McCoon,  4  Denio,  336,  337. 


173  COMPENSATION. 

Distinctions  in  the  matter  of  pkoof. —  In  cases  of  tort,  the 
principles  governing  the  measurement  of  compensation  are  not,  as 
a  general  thing,  different  from  those  which  apply  in  actions  upon 
contract,  if  the  tort  be  not  wilful ;  there  are,  as  Ave  have  just  seen, 
some  exceptions ;  and,  in  certain  cases,  within  the  influence  of  con- 
siderations mentioned  in  a  preceding  page,^  where  the  injury  is  of 
such  a  nature,  or  committed  under  such  circumstances,  that  the 
damages,  or  some  part  of  them,  cannot  be  ascertained  by  any 
definite  or  certain  proof,  the  investigation  is  conducted  by  such 
rules,  in  respect  to  the  quantity,  quality  and  burden  of  proof, 
that  the  injured  party  may  suffer  no  irreparable  loss  from  the 
stealth,  secrecy,  or  complexity,  of  the  wrong.  The  purpose 
of  the  law  is  thus  facilitated.  Lord  Brougham  interrogatively 
expressed  it :  ^  "  When  did  a  court  of  justice,  whether  adminis- 
tered according  to  the  rules  of  equity  or  law,  ever  listen  to  a 
wrongdoer's  argument,  to  stay  the  arm  of  justice,  grounded  on 
the  steps  he  himself  had  successfully  taken  to  prevent  his 
iniquity  from  being  traced  ?  Rather,  let  me  ask,  when  did  any 
wrongdoer  ever  yet  possess  the  hardihood  to  plead,  in  aid  of  his 
escape  from  justice,  the  extreme  difliculties  he  had  contrived  to 
throw  in  the  way  of  pursuit  and  detection,  saying,  you  had  bet- 
ter not  make  the  attempt,  for  you  wiU  find  I  have  made  the 
search  very  troublesome  ?  The  answer  is,  '  the  court  wiU 
try.'  " 

The  intrinsic  nature  of  many  "v^a^ongs  precludes  any  estimate, 
by  witnesses,  of  damages  upon  the  items  which  a  jury  may  con- 
sider, such  as  bodily  or  mental  pain,  disfigurement  or  impaired 
faculties ;  but  the  jury,  in  many  cases  involving  elements  of  this 
nature,  may  be  aided  by  proof  of  extrinsic  facts,  showing  the 
status  of  the  injured  party.  Either  a  tort  or  a  breach  of  con- 
tract, which  destroys  or  injures  anything  of  a  lawful  nature, 
belonging  to  another,  is  a  wrong  and  injury  for  which,  in  some 
reasonable  and  practicable  manner,  the  law  wiU  enable  the 
injured  party  to  measure  and  recover  adequate  compensation. 
Any  such  act,  which  directly  affects,  injuriously,  an  established 
business,  as  by  destruction  of  the  building  in  which  it  is  con- 

'  Ante,  pp.  161,  163.  ^In  Docker  v.  Somes,  2  Myl.  &  K.  674. 


ELEMENTS    OF    DAMAGE.  173 

ducted ;  obstructing  tlie  approaches  necessary  to  it ;  fraudu- 
lently diverting  custom  where  there  was  a  duty  to  maintain 
the  good  will;  by  enticing  away  servants,  or  by  slander,  or 
the  breach  of  any  agreement  of  which  the  profits  of  a  business 
are  the  consideration  or  inducement,  may  require  the  estimate 
of  a  very  uncertain  loss ;  but  the  party,  whose  misconduct  or 
default  has  necessitated  the  inquiry,  cannot  object  to  it,  on  the 
ground  of  the  uncertainty,  though  a  court  wiU,  in  such  a  case, 
proceed  with  caution,  and  not  award  damages  upon  mere  con- 
jecture. 

The  value  of  jproperty  constitvtes  the  Tneasure  or  an  element  of 
damages,  in  a  great  variety  of  cases,  both  of  tort  and  of  con- 
tract ;  and  where  there  are  no  such  aggravations  as  call  for  or 
justify  exemplary  damages,  in  actions  in  which  such  dai^a^ges 
are  recoverable,  the  value  is  ascertained  and  adopted  as  the 
measure  of  compensation  for  being  deprived  of  the  property,  the 
same  in  actions  of  tort  as  in  actions  upon  contract.  In  both  cases 
the  value  is  the  legal  and  fixed  measure  of  damages,  and  not 
discretionary  with  the  jury.  It  is  so  between  vendor  and 
vendee,  on  the  faiku'e  of  either  to  fulfil  a  contract  of  sale  and 
purchase ;  between  employer  and  employee,  on  a  contract  for 
the  manufacture  of  specific  articles ;  where  there  is  a  departure 
from  instructions,  by  an  agent,  or  a  loss  through  his  neghgence. 
or  misconduct,  or  that  of  a  bailee  or  trustee ;  as  well  as  where 
there  is  a  tortious  taking  or  conversion,  by  one  standing  in  no 
contract  relation  to  the  owner.  And,  moreover,  the  value  is 
fixed  in  each  instance,  on  similar  considerations,  at  the  time 
when,  by  the  defendant's  fault,  the  loss  cuhninatcs.^ 

>  Bank  of  Montgomery  V.  Reese,  26  R.  19,  539;   Ganson  v.  Madigan,  13 

Pa.  St.  143;  Owen  v.  Routh,  14  C.  B.  Wis.  67;  Hale  v.  Trout,  35  Cal.  229; 

327;  Day  v.  Perkins,  2  Sandf.  Ch.  Springer  v.  Berry,  47  Me.  330;  Dus- 

359;  Shaw  v.  Holland,  14  M.  &  W.  tin  v.  McAndrews,  44  N.  Y.  72;  Mar- 

136;   Rand  v.    White    Mts.    R.    R.  shall  v.   Piles,  3  Bush,   249;  Camp 

Co.  40  N.  H.  424;  Pinkerton  v.  Man-  v.  Hamlin,  55  Ga.  259;  Boseman  v. 

Chester  R.  R.  Co.  42  N.  H.  424;  Ball  Rose,  40  Ala.  212;  Grand  Tower  Co. 

V.  Douglass,   4  Munf.    303;   Enders  v.  Phillips,  23  Wall.  471;  Underhill 

V.  Board  of  Public  Works,  1  Gratt.  v.  Goff,  48  111.  198;  Bicknell  v.  Wat- 

364;  Dana  v.   FeicUer,  12  N.  Y.  48;  erman,  5  R.  I.  43;  West  v.  Pritch- 

Clemeuts  v.  Hawks  Man.    Co.    117  ard,  19    Conn.  212;    Gregg  v.  Fitz- 

Mass,     363;    Danforth    v.    Walker,  hugh,  36  Tex.  127;  Bush  v.  Holmes, 

37  Vt.  289;  Gerard  v.  Taggert,  5  S.  &  53  Me.  417;  Rider  v.  KeUey,  33  Vt. 


174: 


COMPEA'SATION. 


And  a  party  who  is  entitled  to  recover,  and  must  accept  the 
vahie  of  property,  in  place  of  the  property  itself,  should  always 
be  allowed  interest  on  that  value  from  the  date  at  which  the 
value  was  fixed.  Whether  he  recovers  the  value  for  the  failure 
of  a  vendor  or  bailee  to  deliver ;  or  by  reason  of  the  destruction, 
asportation,  or  conversion,  of  the  property  by  a  wrongdoer,  in- 
terest is  as  necessary  to  a  complete  indemnity  as  the  value 
itself.^  The  injured  party  ought  to  be  put  in  the  same  condition, 
so  far  as  money  can  do  it,  in  which  he  would  have  been,  if  the 
contract  had  been  fulfilled,  or  the  tort  had  not  been  committed ; 
or  the  loss  had  been  instantly  repaired  when  compensation  was 
due." 


268;  Kribbs  v.  Jones,  44  Md.  396; 
Morehead  v.  Hyde,  38  Iowa,  382; 
Whitesell  v.  Forehand,  79  N.  C.  230; 
Bell  V.  Cunningham,  3  Pet.  59;  Far- 
well  V.  Price,  30  Mo.  587:  Schmertz 
V.  Dwyer,  53  Pa.  St.  358;  Heinne- 
mann  v.  Heard,  50  N.  Y.  27;  Han- 
cock V.  Gomez,  50  N.  Y.  668;  Par- 
sons V.  Martin,  11  Gray,  111;  Scott 
V.  Eogers,  31  N.  Y.  676;  Sterrine,  etc. 
Co.  V.  Heintsman,  17  C.  B.  N.  S.  56; 
Hutchins  v.  Ladd,  16  Mich.  494; 
Suydam  v.  Jenkins,  3  Sandf.  641; 
Kennedy  v.  Whitewell,  4  Pick.  466. 
In  Ingram  v.  Eankin,  47  Wis.  406, 
the  court  say:  "  Tlie  rule  fixing  the 
measure  of  damages,  in  actions  for 
breaches  of  contract  for  the  delivery 
of  chattels,  and  in  all  actions  for 
the  wrongful  and  unlawful  taking 


of  chattels,  whether  such  as  would 
formerly  have  been  denominated 
trespass  de  bonis  or  trover,  at  the 
value  of  the  chattels  at  the  time 
when  delivery  ought  to  have  been 
made,  or  at  tlie  taking  or  conver- 
sion, with  interest,  is  certainly 
founded  upon  principle.  It  harmon- 
izes with  the  rule  which  restricts 
the  plaintiff  to  compensation  for  his 
loss,  and  is  as  just  and  equitable  as 
any  other  general  rule  which  the 
courts  have  been  able  to  prescribe, 
and  has  greatly  the  advantage  of 
certainty  over  all  others." 

'Chapman  v.  Chicago,  etc.  R.  R. 
Co.  26  Wis.  295;  McCormick  v. 
Penn.  Cent.  R.  R.  Co.  49  N.  Y.  303; 
Hamer  v.  Hatliaway,  33  Cal.  117. 

^  Suydam  v.  Jenkins,  3  Sandf,  620. 


GENEKAL   I'EENCirLES.  175 


CHAPTER  TV. 

ENTIRETY  OF  CAUSES  OF  ACTION  AND  DABIAGES. 

Section  1. 

general  principles. 

Damages  for  a  cause  of  action  not  divisible  —  All  to  he  claimed  in  one 
action  though  they  extend  into  the  future  — WJiat  is  an  entire  demand  — 
Parties  may  sever  an  entire  demand — Contract  to  do  several  things 
successively,  or  one  thing  continuoitsly  —  Items  of  account  —  Continu- 
ing obligations  —  Not  necessary  all  damages  shoidd  accrue  before  action 
brought  —  Contracts  of  indemnity —  Wliere  property  taken  for  public 
use —  What  is  not  a  double  remedy  —  Prospective  damages  —  Certainty 
of  proof  of  future  damages  —  Action  for  enticing  aivay  apprentice, 
servant  or  son  —  Future  damages  for  personal  injuries —  Only  present 
worth  of  future  damages  given  —  Continuous  breach  of  contract  or 
wrong  not  an  entirety  —  The  law  tvill  not  presume  a  contimiance  of 
wrong  —  Nuisance  by  flooding  land  —  Tlie  necessity  of  successive  actions. 

DiiMAGES    FOE    CAUSE    OF    ACTION    NOT     DIVISIBLE. A     CaHSG     of 

action  and  the  damages  recoverable  tlierefor  are  an  entiret^^ 
The  party  injured  must  be  plaintiff,  by  the  common  law,  and  he 
must  demand  all  the  damages  which  he  has  suffered  or  ever 
Tvill  suffer  from  the  injury,  grievance  or  cause  of  action,  upon 
which  his  action  is  founded.  He  cannot  spht  a  cause  of  action 
and  bring  successive  suits  for  parts,  because  he  may  not  be  able 
at  first  to  prove  all  the  items  of  the  demand,  or  because  all  the 
damages  have  not  been  suffered.  If  he  attempt  to  do  so,  a 
recovery  in  the  first  suit,  though  for  less  than  his  whole  demand, 
will  be  a  bar  to  the  second.^ 

All    TO   BE   CLxUMED   IN    ONE    ACTION   THOIIGH    THEY  EXTEND  INTO 

THE  FUTURE. —  If  oue  party  to  a  special  contract  prevents  the 
other  from  performing  and  thereby  earning  wages,  or  reahzing 
profits,  the  latter  in  one  action  brought  at  once  after  the  breach, 

'  Colvin  V.  Corwin,  15  Wend.  557;  Cook,  7  Cow.  310;  Brazier  v.  Ban- 
Miller  V.  Covert,  1  Wend.  487;  Wag-  ning,  20  Pa.  St.  345;  Ross  v.  Weber, 
ner  v.  Jacoby,  26  Mo.  532;  Smith  v.  26  111.  221;  Logan  v.  Caffrey,  30  Pa. 
Jones,    15     John.    229;     Butler    v.  St.  196. 
Wright,   2  Wend.  369;   Connell  v. 


ITG  EKTIEETY    OF    DAMAGES. 

may  recover  damages  which  will  compensate  him  for  the  loss  of 
the  contract.  Although  by  performance,  the  benefits  of  the  con- 
tract wonld  accrue  at  a  future  time,  yet  upon  a  breach  by  which 
such  future  advantages  will  be  prevented,  the  injured  party  may 
recover  damages  immediately  after  the  breach  equivalent  to  the 
loss,  so  far  as  he  can  prove  it.  And  to  facilitate  the  proof,  the 
court  will  not  oblige  the  party  to  anticipate  the  future  state  of 
the  market,  but  will  give  the  injured  party  the  benefit  of  mar- 
ket rates  at  the  time  of  the  breach.  Thus,  in  the  leading  case  in 
I^ew  York,*  it  was  argued  that  inasmuch  as  the  furnishing  of  the 
marble  would  run  through  a  period  of  five  years,  of  which  only 
about  one  year  and  a  half  had  expired  at  the  time  of  the  breach, 
the  benefits  which  the  contractor  might  have  realized  from  the 
execution  of  the  contract  must  be  speculative  and  conjectural ; 
the  court  and  jury  having  no  certain  data  upon  Avliich  to  mali:e 
the  estimate.  The  court  say,  "  where  the  contract  ...  is 
broken  before  the  arrival  of  the  time  for  full  performance,  and 
the  opposite  party  elects  to  consider  it  in  that  light,  the  market 
price  on  the  day  of  the  breach  is  to  govern  in  the  assessment  of 
damages.  In  other  words,  the  damages  are  to  be  settled  and 
ascertained  according  to  the  existing  state  of  the  market  at  tlie 
time  the  cause  of  action  arose,  and  not  at  the  time  fixed  for  full 
performance."  ^  But  the  parties  are  entitled  to  the  benefit  of 
any  facts  transpiring  subsequently  to  the  bringing  of  the  action, 
which  show  more  clearly  the  gains  prevented  by  the  breach  of 
contract  complained  of,  or  the  damages  sustained  from  such  a 
cause  of  action,  or  any  other,  the  injurious  effects  of  which 
extend  into  the  future.  This  point  will  receive  f mother  elucida- 
tion when  we  come  to  speak  of  prospective  damages. 

What  is  aist  entire  demand  ?  —  The  reader's  attention  is  now 
directed  to  what  constitutes  an  entire  demand  or  cause  of  ac- 

1  Masterson  v.  The  Mayor,  etc.  7  Schell  v.  Plumb,  55  N,  Y.  592;  Sib- 
Hill,  61,  71.  ley  v.  Rider,  54  Me.   463;  Fales   v. 

=  Walcott  V.  Mount,  36  M.  J.  L.  Hemenway,  64  Me.  373;  Riclimond 
562;  Mc Andrews  v.  Tippett,  39  N.  J.  v.  Dubuque,  etc.  R.  R.  Co,  40  Ir-wa, 
L.  105;  Burrill  v.  N.  Y.  &  C.  Co.  14  264;  Tippin  v.  Ward,  5  Oregon,  4r,0; 
Mich.  34;  Roper  v.  Johnson,  L.  R.  8  Howard  v,  Daly,  61  N.  Y.  363;  Gif- 
C.  P.  167;  Frost  v.  Knight,  L.  R.  5  ford  v.  Waters,  67  N.  Y.  80;  Crab- 
Ex.  325;  Sutherland  v.  Wyer,  67  Me.  tree  v,  Hoganbaugb,  25  111.  233. 
64;  Dugan  v.  Anderson,  36  Md.  567; 


GENERAL    PKINCIPLES.  17T 

tion.  Whether  a  contract  be  single  and  entire,  or  apportion- 
able,  if  there  be  a  total  abandonment  or  breach  by  one  party, 
the  other  has  a  single  cause  of  action  upon  the  entire  contract, 
if  he  think  proper  to  act  upon  the  breach  as  a  total  one ;  and 
the  better  opinion  is  that  he  is  obhged  to  do  so.  A  part}"  has  a 
right  to  break  his  contract  on  the  terms  of  being  liable  for  the 
damages,  which  will  accrue  for  the  same  at  the  tune  he  elects 
to  exerq.se  that  right.  And  it  is  the  duty  of  the  other  party 
when  notified  thereof  to  exert  himself  to  make  the  damages  as 
light  as  possible.^ 

What  default  a  party  may  treat  as  a  total  breach  of  a  con- 
tract is  not  always  an  easy  question,  and  its  solution  should  be 
looked  for  in  works  upon  contracts  rather  than  damages,  for  it 
depends  upon  the  interpretation  of  the  contract.  Like  most 
other  questions  of  construction,  it  depends  upon  the  intention  of 
the  parties,  and  must  be  discovered  in  each  case  by  considering 
the  language  and  the  subject-matter  of  the  contract.^  If  it  is 
single  and  entire,  or  to  the  extent  that  it  is  so,  it  can  be  the 
subject  of  but  one  action  against  the  defaulting  party,  and  the 
party  suing  must  have  performed  all  precedent  conditions  to 
place  the  other  party  in  default.^ 

Parties  may  sever  an  entire  demand. —  A  contract  origi- 
nally entire,  may  be  severed  afterwards  by  the  parties,  so  as  to 

'Dillon  V.  Anderson,  43  N.  Y.  231;  R.  Co.   13  Ind.   103;  Hutchinson  v. 

Hartland  V.  General  Exchange  Bank,  Wetmore,  2  Cal.  310;  Camp  v.  Mor- 

14  L.  T.  N.   S.  863;  WiUoughby  v.  gan,  21  lU.  255;  Morgan  v.  MeKee, 

Thomas.  24  Gratt.  522;  Polk  v.  Daly,  77  Pa.  St.  228;  Casselberry  v.  Forg- 

14  Abb.  Pr.  N.  S.  156.  ner,  27  lU.  170;  Larkin  v.  Buck,  11 

2  2  Pars,  on  Cont.  517.  Ohio  St.  561;  HaU  v.  Claggett,  2  Md.. 

^Id.  pp.  517-527;  Shiner  v.  Bodine,  Ch.  151;  White  v.  Brown,  2:  Jdnes 

60  Pa.  St.  182;  Withers  v.  Reynolds,  L.  (N.  C.)  403;  Wagner  v.  Jacoby,, 

2  B.  &  Ad.  882;  Shaw  v.  Turnpike  26  Mo.  532;  Walter  v.   Richardson, 

Co.  2  Pa.  454;  Dairs  v.  Maxwell,  12  11  Rich.  466;  Quigley  v.  De  Haas,  82 

Met.  286;  Harris  v.  Leggett,  1  Watts  Pa.  St.  267;  Sweeney  v.  Doroughty, 

&  S.  301;  Hopf  V.  Meyers,  42  Barb.  23  Iowa,  291;  Stevens  v.  Ik)ckwood, 

270;  Crips  v.  Talvande,  4  McCord,  13  Wend.  644;  Blakeney  v.  Fergu- 

20;  Herriter  v.  Porter,  23  Cal.   385;  son,  18  Ark.  347;  Pinney  v.  Barnes, 

Brown  v.  Smith,  12  Cush.  366;  Mes-  17  Conn.  420;  Farrington  v.  Payne, 

sick  V.  Dawson,  2  Harr.  (Del.)  50;  15  John.  432;  PhUlips  v.  Berick,  16 

Fulsom  V.  Clemence,  19  Mass.  473;  John.  136;  Cunningham  v.  Jones,  20 

Brannen  berg  V.  Indianapolis,  etc.  R.  N.  Y.  486;  James  v;  Lawrence,  7 
Vol.  1  —  12 


178  ENTIRETY   OF    DAIVIAGES. 

give  one  a  right  of  action  for  a  part  performance.  This  was 
the  case  wliere  there  was  an  entire  contract  for  the  dehvery  of 
logs,  and  on  delivery  of  a  part  the  purchaser  paid  therefor 
partly  in  money  and  gave  notes  for  the  residue  so  dehvered.  It 
was  held  that  the  notes  could  be  collected  notwithstanding  any 
default  in  the  delivery  of  other  logs  to  fulfil  the  contract,  but 
subject  to  recoupment  of  the  damages  for  such  breach.^  Under 
an  agreement  that  if  the  creditor  would  forbear  suing  upon  the 
whole  of  his  demand,  and  sue  upon  a  part  of  it  only,  and,  in 
case  of  a  recovery  upon  that  part,  the  debtor  would  pay  the 
balance ;  it  was  held  that  such  agreement  was  a  waiver  of  the 
rule  in  his  favor  concerning  the  division  of  actions,  and  that 
the  recovery  upon  the  part  sued  upon  was  not  a  bar  to  an  action 
upon  the  balance  of  the  claim.^  So  a  quantum  meruit  claim 
may  arise  for  a  part  performance  on  account  of  the  benefit 
derived  from  it.^ 

Contracts  to  do  several  things  successively,  or  one  thing- 
CONTINUOUSLY. —  A  coiitract  to  do  several  things  at  different 
times  is  divisible  in  its  nature,  and  an  action  will  Me  upon  each 
default.*  A  defendant  being  the  keeper  of  an  oiSce  for  pro- 
curing crews  of  vessels,  in  consideration  of  the  plaintiff's  agree- 
ment to  furnish  such  supplies  and  advances  as  might  be  neces- 
sary in  the  business,  promised  to  pay  the  plaintiff  a  certain  sum 
for  eacli  man  shipped,  and  to  repay  tlie  advances ;  it  was  held 
that  the  defendant's  undertaking  was  several.^  But  when  a 
party  has  several  demands  or  existing  causes  of  action  growing 
out  of  the  same  contract,  or  resting  in  matter  of  account,  which 
may  be  joined  and  sued  for  in  the  same  action ;  they  must  be 
joined,  and  they  constitute  an  entire  cause  of  action  or  demand ; 
and  if  they  be  split  up  and  a  suit  ])e  brought  for  a  part  only, 
and  subsequently  a  second  suit  for  the  residue,  the  first  action 
if  determined  on  the  merits  will  be  a  bar.^ 

Harr.  &  J.   73;    Schaffer  v.  Lee,  8  Wheat,  277,  288;  Secor  v.   Sturgis, 

Barb.  412;  CampbeU  v.  Hutchell,  55  16  N.  Y.  548. 

Ala.  548.  *  See  ante,  p.  154. 

1  Fessler    v.     Love,    43    Pa.     St.  ■"  Badger  v.  Titcomb,  15  Pick.  409; 

313.  Basler  v.  Nichols,  8  Ind.  260. 

-  Mills  V.    Garrison,  42  N.  Y.  40  ^  Badger  v.  Titcomb,  supra. 

(Keyes);    Mandeville    v.    Welch,    5  ^Bendernagle  v.  Cocks,  19  Wend. 


GENERAL   PRINCIPLES. 


179 


Where  there  were  several  and  distinct  covenants  contained  in 
the  same  instrument,  and  a  suit  was  brought  claiming  damages 
for  some  of  the  breaches,  and  subsequently  a  second  action  was 
commenced  claiming  damages  for  other  breaches,  all  having 
accrued  at  the  time  of  bringing  the  first  suit ;  it  was  held  that 
the  pendency  of  the  first  action  might  be  pleaded  in  abatement 
of  the  second,^ 


207;  James  t.  Lawrence,  7  Harr.  & 
J.  73;  Atwood  v.  Norton,  27  Barb. 
638;  Casselberry  v.  Forgner,  27  111. 
170. 

'Id.  Cowen,  J.,  said:  "In  respect 
to  separate  and  independent  con- 
tracts, the  books  agree  that  separate 
actions,  whether  the  proper  form  be 
coTeuant,  assumpsit  or  debt,  may  be 
brought  at  the  pleasure  of  the  party, 
subject  only  to  the  power  of  the 
courts  to  direct  them  to  be  consoli- 
dated in  proper  cases.  Phillips  v. 
Berick,  16  John.  136;  Badger  v.  Tit- 
comb,  15  Pick.  409;  Rex  v.  The 
Sheriff  of  Hertfordshire,  1  Barn.  & 
Adol.  572.  With  respect  to  instal- 
ments of  money  due  at  successive 
days  under  the  same  contract,  a 
difference  is  taken,  that  if  the  action 
be  debt,  it  must  be  brought  for  the 
whole.  Rudder  v.  Price,  1  H.  Black. 
550;  per  AVilde,  J.,  15  Pick.  413;  but 
if  it  be  covenant  or  assumpsit,  the 
action  may  be  for  each  successive 
instalment  as  it  falls  due.  Cook  v. 
"Wborwood,  2  Saund.  337;  Badger  v. 
Titromb,  15  Pick.  409;  Ashford  v. 
Hand,  Andr.  370.  And  so,  without 
doubt,  as  to  any  other  breach  of  sev- 
eral covenants  or  promises  contained 
in  the  same  contract,  provided  the 
action  be  brought  before  the  subse- 
quent breaches  are  committed.  The 
cases  all  agree  that  where  the  de- 
mand is  entire,  a  recovery  for  part 
bars  a  suit  for  the  whole.  Willard 
V.  Sperry,  16  John.  121;  Brockway 
V.  Kinney,  2  id.  210;  Farrington  v. 
Payne,  15  id.  432;  Bates  v.  Quottle- 


bora,  2  Nott  &  McC.  205;  Hite  v. 
Long,  6  Rand.  457;  Smith  v.  Jones, 
15  John.  229;  Miller  v.  Covert,  1 
Wend.  487;  Ingraham  v.  Hall,  11 
Serg.  &  R.  78;  Fetter  v.  Beale,  1  Salk. 
11;  BarweU  v.  Kensey,  3  Lev.  179. 
The  difficulty  lies  in  discriminating 
between  entire  and  several  demands. 
I  have  been  unable  to  find  but  one 
case  which  holds  that,  there  being 
several  breaches  of  the  same  con- 
tract already  committed,  the  party 
may  bring  several  actions  for  each. 
That  is  the  case  of  Badger  v.  Tit- 
comb,  15  Pick.  409,  which  will  be 
noticed  by  and  by.  On  the  contrary, 
I  think  the  decisions  of  this  court  in 
respect  to  accounts  involve  the  oppo- 
site doctrine.  Guernsey  v.  Carver, 
8  Wend.  492;  Colvin  v.  Corwin,  15 
Wend.  557.  They  go  upon  the 
ground  that  dealings  between  parties 
in  a  current  account  make  but  one 
entire  contract;  and,  tlierefore,  a 
suit  and  recovery  for  part,  the  wliole 
being  due,  should  be  a  bar  to  the 
whole.  It  is  an  entire  demand,  in- 
capable of  division.  Per  Nelson,  J., 
8  Wend.  494.  Yet  every  additional 
item  in  the  account  is  in  the  nature 
of  a  distinct  instalment.  The  obvi- 
ous principle  is,  that  several  claims 
already  due,  under  tlie  same  con- 
tract, should  be  deemed  one  entire 
demand  or  cause  of  action.  In  the 
late  case  of  Colvin  v.  Corwin,  15 
Wend.  557,  the  two  demands  wer6 
distinct  as  to  time  and  place,  being 
several  purchases  of  lottery  tickets 
by  the  defendant  at  two  different 


180 


ENTIKETT    OF    DAMxVGES. 


The  principle  is  settled  beyond  dispute,  that  a  judgment  con- 
cludes the  rights  of  the  parties  in  respect  to  the  cause  of  action 
stated  in  the  pleadings  on  which  it  is  rendered,  whether  the 
suit  embraces  the  whole  or  only  a  part  of  the  demand  consti- 
tuting the  cause  of  action.  It  results  from  this  principle,  and 
the  rule  is  fully  estabhshed,  that  an  entire  claim,  arising  either 


lottery  offices  of  the  plaintiff's,  and 
of  different  agents;  yet  both  being 
due,  it  was  held  that  an  action  for 
one  item  barred  a  subsequent  suit 
for  the  other.  The  chief  justice 
speaks  of  the  two  suits  as  the  split- 
ting of  a  small  demand.  Yet  sup- 
pose that  one  of  these  items  had  not 
been  due  at  the  time  of  the  first 
suit,  clearly  the  objection  would 
have  been  removed,  I  venture  to 
say  that  the  courts  have,  with  few 
exceptions,  acted  uptui  this  distinc- 
tion ever  since  Girling  v.  Aldas,  2 
Keb.  617,  A.  D.  1670,  in  B.  R.  32 
Car.  2.  That  case  is  thus  reported: 
*  Co  nan  opposed  a  prohibition  to 
the  honor  of  Ale  on  splitting  of  ac- 
tions because  the  party  was  insolv- 
ent, and  the  contracts  realhj  several, 
on  several  deliveries  of  ale  by  Malster 
to  Alewife.  Sed  non  allocutur,  but 
per  curiam,  a  prohibition  must  be 
awarded.'  In  the  late  case  of  Mc- 
Laughlin  v.  HiU,  6  Vt.  20,  without 
denying  the  general  rule,  the  court 
saved  from  its  operations  those 
items  of  account  which  were  not 
due,  and  therefore  not  submitted  to 
the  justice  in  the  first  suit.  Avery 
V.  Fitch,  4  Conn.  362,  S.  P.  The 
same  rule,  with  another  proper  ex- 
ception, will  be  found  to  have  been 
acted  upon  in  Bagot  v.  "Williams,  3 
B.  &  C.  235.  I  admit  that  Badger  v. 
Titcomb,  15  Pick.  409,  is  opposed  to 
this  rule.  .  .  .  It  is  sufficient  to 
reply  that  in  doing  so  it  was  neces- 
sary, as  was  done  in  that  case,  to 
deny  that  Guernsey  v.  Carver  was 
rightly  decided  by  this  court.     The 


learned  judge  who  delivered  the 
opinion  of  the  covirt  in  the  former 
case,  observes:  'We  know  of  no 
principle  of  law,  nor  any  decided 
case,  on  which  the  decision  in  that 
case  (Guernsey  v.  Carver)  can  be 
sustained.'  Were  there  such  a  total 
absence  of  both  principle  and  au- 
thority as  is  here  intimated,  we 
might  well  distrust  the  propriety  of 
further  adhering  to  that  decision. 
But  with  gi'eat  deference  I  had  sup- 
posed that  Girling  v.  Aldas,  before 
cited  from  2  Keb. ,  to  be  plain  in  prin- 
ciple against  splitting  up  of  accounts 
or  different  demands  arising  under 
the  same  contract;  and  to  go  the 
length  of  absolutely  foi'biddiug  it  to 
be  done.  This  will  be  seen  more  dis- 
tinctly by  the  report  of  the  same 
case  in  1  Sid.  73,  by  the  title  of  Cur- 
ling V.  Alders.  '  The  case  was,  one 
contracted  with  another  for  divers 
parcels  of  malt,  and  he  levied  divers 
plaints  thereupon,  wherefore  the 
court  here  granted  a  prohibition, 
because,  though  they  be  several  con- 
tracts, yet  for  as  much  as  the  plaint- 
iff might  have  joined  them  all  in 
one  action,  he  ought  so  to  have 
done,  and  sued  here,  and  not  put 
the  defendant  to  an  unnecessary 
vexation,  no  more  than  he  can  split 
an  entire  debt  into  divers,  to  give 
the  inferior  court  jurisdiction  in 
fraiidem  legis.^  Tlie  same  rule  is 
put  in  the  same  book.     Anon.  65. 

' '  In  one  view,  and  taken  literally, 
these  books  may  go  too  far;  but,  al- 
though they  speak  of  several  con- 
tracts,  they   evidently  mean   sepa- 


GENERAL,   PRINCIPLES. 


181 


upon  a  contract  or  from  a  wrong,  cannot  be  divided  and  made 
the  subject  of  several  suits ;  and  if  several  suits  be  brought  for 
different  parts  of  such  a  claim,  the  pendency  of  the  first  may 
be  pleaded  in  abatement  of  the  others,  and  a  judgment  upon 
the  merits  of  either  will  be  available  as  a  bar  in  the  other  suits. 
But  it  is  fjntire  claims  only  which  cannot  be  divided  within  this 


rate  demands,  growing  out  of  one 
general  contract,  or  a  course  of 
dealing  or  account  cuiTent  between 
the  parties.  For  the  purpose  of  an 
action,  they  make  but  one  demand. 
It  is  the  same  thing  in  effect, 
whether  the  splitting  of  their  de- 
mrjid  be  restrained  by  i^rohibition, 
or  by  allowing  the  first  suit  to  be 
pleaded  in  abatement  or  in  bar  of 
the  second.  It  is  but  a  difference  in 
the  remedy.  Bagot  v.  Williams 
adopts  tlie  latter  remedy.  Lord 
Bagot's  steward  (Williams)  had  re- 
ceived various  sums  of  money  at 
different  times  m  1822,  for  the  use 
of  his  principal.  The  sums  which 
he  received  for  the  sales  of  timber 
exceeded  £3,400.  This,  with  the 
other  sums,  made  on  the  whole 
£7,000,  which  Lord  Bagot's  agent 
knew  when  he  sued  in  debt  for  only 
£4,000,  in  the  name  of  Lord  Bagot 
against  Williams,  in  the  court  baron 
at  Ruthen.  Judgment  passed  by  de- 
fault, and  the  plaintiff's  agent  veri- 
fied and  took  judgment  for  £3,400 
only.  After  that  judgment  was  ob- 
tained, the  plaintiff's  agent  discov- 
ered that  the  defendant  had  also  re- 
ceived £46  for  rent  due  at  Christmas, 
1821.  On  a  suit  being  brought  in 
the  king's  bench  for  the  balance  of 
the  account,  the  former  suit  was 
pleaded  in  bar,  as  being  the  same 
identical  cause  of  action;  on  which 
issue  was  joined;  and  the  plea  was 
sustained  on  evidence  of  these  facts, 
except  as  to  the  £46.  Garrow,  B., 
who  tried  this  cause,  was  of  opinion 
'that  whatever  constituted  a   sub- 


sisting debt  at  the  time  when  the 
proceeding  in  the  inferior  court  was 
instituted,  and  was  known  to  be  so 
by  the  agent  who  managed  the 
whole  transaction,  w^as  to  be  consid- 
ered as  included  in  and  constituting 
one  entire  cause  of  action,'  and  di- 
rected a  verdict  for  the  plaintiff  for 
only  £46.  On  a  motion  for  a  new 
trial,  Abbott,  C.  J.,  assumed  that 
the  form  of  the  action  in  the  court 
below  might  have  been  what  he 
calls  a  concessit  solvere,  including 
the  same  causes  of  action  vehich 
were  the  subject  of  the  second  suit; 
and  he  considered  the  acts  of  the 
agent,  with  a  knowledge  of  all  the 
facts,  as  equivalent  to  a  submission 
of  the  same  facts  to  a  juiy,  and 
tlieir  finding  a  balance  of  only 
£3,400.  Bay  ley,  J.,  took  a  broader 
ground,  and,  I  think,  went  the  same 
length  with  the  learned  baron  who 
ti-ied  the  cause.  He  observes:  'In 
this  case  Lord  Bagot,  at  the  time 
when  the  first  action  was  com- 
menced, had  a  demand  on  the  de- 
fendant, not  for  one  specific  sum  of 
money,  but  for  different  sums  of 
money  received  by  the  defendant  on 
his  account,  from  different  persons, 
and  at  different  times.  His  agent 
knew  that  he  had  claims  in  respect 
of  all  these  sums  now  claimed,  ex- 
cept £46;  and,  having  that  knowl- 
edge, he  formed  an  opinion  that 
£3,400  was  the  whole  sum  that  Lord 
Bagot  ought  to  claim;  and  if  he 
acted  upon  that  opinion,  it  is  much 
the  same  thing  as  if  the  plaintiff,  in 
a  cause  at  nisi  prim,  liaving  a  de- 


\  * 


182 


ENTIKETY    OF    D^UIAGES. 


rule;  those  which  are  single  and  indivisible  in  their  nature. 
The  cause  of  action  in  the  different  suits  must  be  the  same. 
The  rule  does  not  prevent,  nor  is  there  any  principle  which  pre- 
cludes, the  prosecution  of  several  actions  upon  several  causes  of 
action.  Tlie  holder  of  several  promissory  notes  may  maintain 
an  action  on  each ;  a  party  upon  whose  person  or  property  suc- 


mand  of  £60,  consisting  of  three 
.sums,  which  became  due  at  differ- 
ent times,  consented  to  take  a  ver- 
dict for  £40.  If  the  jury  in  such  a 
case,  at  the  suggestion  of  the  plaint- 
iff, reduced  the  verdict  to  £40,  he 
would  be  bound  by  it,  and  could  not 
afterwards  bring  a  second  action  for 
the  other  £20.  It  seems  to  me  that 
he  is  equally  bound  by  his  own  act 
in  til  is  case  as  he  would  have  been 
by  the  verdict  of  a  jury  in  the  other; 
and  that  having  chosen  to  abandon 
his  claim  once,  he  has  done  it  for- 
ever.' Holroyd,  J.,  concurred,  and 
a  new  trial  was  denied.  Now, 
I  understand  a  majority  of  the 
judges  liere  to  put  the  case  upon  the 
simple  facts  that  Lord  Bagot  had  a 
claim  for  several  svims  resting  in  ac- 
count, and  chose  to  sue  for  some  of 
them.  Accordingly  in  Bunnell  v. 
Pinto,  2  Conn.  431,  where  the  par- 
ties submitted  their  accounts  to  ar- 
bitrators, who  awarded,  and  the 
plaintiff  sued  for  $40  not  included  in 
the  award;  this  was  held  a  bar  to 
the  action;  and  Swift,  C.  J.,  re- 
marks that  'a  book  account  is  an 
indivisible  claim,  as  much  as  a 
promissory  note;  and  a  party  may 
as  well  pretend  that  he  kept  back  a 
part  of  his  claim  on  a  note,  and 
then,  after  tlie  award,  bring  a  suit 
upon  it.'  Hosmer,  J.,  and  the  rest 
of  the  court,  it  is  true,  do  not  ac- 
cede to  the  proposition;  but  in  the 
subsequent  case  of  Avery  v.  Fitch, 
4  Conn.  363,  the  whole  court,  with 
Hosmer,  now  chief  justice,  at  their 
head,  not  only  adopt  and  repeat  it, 


but  I  think  take  a  distinction 
which  goes  the  whole  length  of 
maintaining  the  plea  now  in  ques- 
tion. To  an  action  on  book,  the 
plea  was,  that  by  writ  dated  July 
9,  1819,  the  plaintiff  brought  an 
action  on  book  against  the  defend- 
ant, demanding  $7,  and  on  the  gen- 
eral issue  recovered  judgment.  Rep- 
lication that  the  account  of  $7 
accrued  and  fell  due  after  the  com- 
mencement of  the  suit  in  which  the 
recovery  was  pleaded.  Hosmer,  C. 
J.,  delivered  the  opinion  of  the 
court.  He  said:  'For  the  same 
cause  of  action,  no  person  ought  to 
recover  twice;  and  if  it  might  have 
been  exhibited  in  a  former  suit  as 
part  of  a  book  debt,  then  litigated, 
it  must  be  considered  as  extin- 
guished. A  man  cannot  be  per- 
mitted to  sever  a  book  debt,  and 
multiply  suits  unnecessarily.  The 
case  of  Lane  v.  Cook,  8  Day,  355, 
settled  this  principle:  that  a  judg- 
ment in  an  action  of  book  debt  is 
conclusive  'as  to  all  matters  on 
book  subsisting  between  the  parties 
at  the  date  of  the  writ  on  which 
judgment  was  rendered.''  But  a 
cause  of  action  which  originated 
posterior  to  the  commencement  of  a 
suit  can  not  be  affected  by  the  judg- 
ment rendered  in  it,  as  it  was  not 
exhibited  in  evidence,  nor  could 
form  any  part  of  the  matter  on 
which  tlie  suit  was  instituted.' 
Looking,  as  I  think  we  must,  on  the 
several  defaults  to  pay  items  as  so 
many  successive  breaches  of  a  single 
contract,  we  here  have  an  authority 


GENERAL   PEINCIPLE8. 


183 


cessive  and  distinct  trespasses  have  been  committed,  may  bring 
a  separate  suit  for  every  trespass ,  and  all  demands,  of  whatever 
nature,  arising  out  of  separate  and  distinct  transactions,  may  be 
sued  upon  separately.  It  makes  no  difference  that  the  causes 
of  action 'might  be  united  in  a  single  suit ;  the  right  of  the  party 
in  whose  favor  they  exist,  to  separate  suits,  is  not  affected  by 
that  chcmnstance.'  The  true  distinction  between  demands  or 
rights  of  action  which  are  single  and  entire,  and  those  whiqh 
are  several  and  distinct,  is,  that  the  former  immediately  arise 
out  of  one  and  the  same  act  or  contract,  and  the  latter  out  of 
different  acts  or  contracts. 

Perhaps  as  simple  and  safe  a  test  as  the  subject  admits  of,  by 
which  to  determine  whether  the  case  belongs  to  one  class  or  the 
other,  is  by  inquiring  whether  it  rests  upon  one  or  several  acts 
or  agreements.  In  the  case  of  torts,  each  trespass,  conversion 
or  fraud  gives  a  cause  of  action,  and  but  a  single  one ;  ^  in  respect 


for  saying  that  all  such  breaches  are 
but  parts  of  one  indivisible  demand, 
so  far  as  they  were  committed  at 
the  commencement  of  the  suit.  I 
must,  therefore,  be  permitted  to  be- 
lieve that  Guernsey  v.  Carver  is  not 
without  X)rinciple  and  authority  in 
its  support,  and  that  it  was  very 
pi'operly  followed  in  Stevens  v. 
Lockwood,  13  Wend.  644,  and  other 
cases  in  this  court.  I  admit  that 
Rex  V.  The  Sheriif  of  Hertfordshire, 
1  B.  &  Ad.  672,  is  not  without  an 
appearance  of  conflict  with  other 
English  cases.  A  became  Indebted 
to  B  less  than  40s.  (the  jurisdiction 
of  the  sheriff's  court)  for  carriage  of 
goods,  and  less  than  40s.  for  like 
carriage  one  month  after.  B  sued 
for  each  separately  in  the  sheriff's 
court,  and  the  king's  bench  held  the 
same  to  be  distinct  debts,  and  denied 
a  prohibition.  Girling  v.  Alders  was 
cited  in  support  of  the  motion;  nor 
was  its  authority  denied;  nor  was  that 
of  Bagot  v.  WiUiams.  Two  such  re- 
mote and  distinct  instances  of  deal- 
ing might  have  been  viewed  as  not 


coming  within  the  rule  which  for- 
bids the  splitting  of  a  continuous 
account,  much  less  as  making  parts 
of. one  express  contract.  The  rule 
may  differ  in  its  results  accordingly 
as  courts  give  it  a  more  restricted  or 
a  more  liberal  application.  Rex  v. 
The  Sheriff  of  Hertfordshire  seems 
to  be  an  instance  of  the  foiTuer;  Col- 
vin  V.  Corwin,  in  this  court,  of  the 
latter.  The  two  cases  may  stand 
together  in  their  circumstances,  but 
the  rule  itself  appears  to  be  as  fully 
recognized  in  England  as  m  this 
state;  and  being  of  a  remedial  tend- 
ency, by  contributing  to  reduce  a 
vexatious  multiplicity  of  suits,  it 
should  be  liberally  applied.  No  such 
uncertainty,  however,  can  arise  in 
applying  it  to  different  claims  aris- 
ing upon  the  same  express  contract." 

'Secor  V.  Sturges,  16  N.  Y.  554. 
This  case  overiniles  Colvin  v.  Cor- 
win, 15  Wend.  557,  and  disapproves 
of  the  reasoning  in  Guernsey  v.  Car- 
ver, 8  Wend.  493. 

'  Secor  V.  Sturges,  supra;  Folsome 
V.  Clemence,  119  Mass.  473;  Bran- 


184  ENTIRETY   OF   DAilAGES. 

to  contracts,  express  or  implied,  each  contract  affords  one  and 
only  one  cause  of  action.  The  case  of  a  contract  containing 
several  stipulations  to  be  performed  at  different  times  is  no  ex- 
ception; although  an  action  may  be  maintained  upon  each  stip- 
ulation as  it  is  broken,  before  the  time  for  the  performance  of 
the  others,  the  ground  of  action  is  the  stipulation  which  is  in 
the  nature  of  a  several  contract.^ 

Iteisis  of  account. —  Where  there  is  an  account  for  goods  sold, 
or  labor  performed,  where  money  has  been  lent  to  or  paid  for 
the  use  of  a  party  at  different  times,  or  several  items  of  claim 
springing  in  any  way  from  contract,  whether  one  only  or  sepa- 
rate rights  of  action  exist,  will  in  each  case  depend  on  whether 
the  case  is  covered  by  one  or  by  several  or  separate  contracts. 
The  several  items  may  have  their  origin  in  one  contract,  as  an 
agreement  to  sell  and  dehver  goods,  or  perform  work,  or 
advance  money ;  and,  usually,  in  case  of  a  running  account,  it 
may  be  fairly  unplied  that  it  is  in  pursuance  of  an  agreement 
that  an  account  may  be  opened  and  continued,  either  for  a 
dehnite  period,  or  at  the  pleasure  of  one  or  both  of  the  parties. 
But  there  must  be  either  an  express  contract,  or  the  chcmn- 
stances  must  be  such  as  to  raise  an  imphed  contract,  embracing 

nenbvirg  v.  Indianapolis,  etc.  R.  R  ent  covenants,  the  third  of  which 
Co.  13  Ind.  103;  Hirenbothem  v.  was  to  keep  the  buildings  and  fences 
Lowenbein,  6  Robt.  557;  Marble  v  in  repair,  and  the  seventh,  to  biiild, 
Keyes,  9  Gray,  221;  Eastman  v.  during  the  continuance  of  the  lease. 
Cooper,  15  Pick.  276;  Bennett  v  125  rods  of  fence.  It  was  held  that 
Hood,  1  Allen,  47;  Trask  v.  Hart-  a  former  action  by  the  lessor,  upon 
ford,  etc.  R.  R.  Co.  2  Allen,  331;  Doty  the  last  covenant,  for  not  building 
V.  Brown,  4  N.  Y.  71.  the  fence,  was  not  a  bar  to  an  action 
1  Secor  V.  Sturges,  supra;  Reform-  subsequently  brought  ujion  the  cov- 
ed, etc.  Church  v.  Brown,  54  Barb,  enant  to  repair;  that  the  two  cove- 
191;  Campbell  v.  HatcheU,  55  Ala.  nants  were  distinct,  and  had  no 
548;  O'Beirne  V.  Lloyd,  43  N.  Y.  248;  connection  with  each  other,  except 
Pinney  v.  Barnes,  17  Conn.  420;  Rud-  that  they  were  contained  in  the  same 
der  V.  Price,  1  H.  Black.  550;  Cobb  instrument;  that  the  former  action 
V.  The  I.  C.  R.  R.  38  Iowa,  601;  must  have  been  to  recover  for  the 
Clayes  v.  White,  83  lU.  540;  Blake-  same  identical  cause  of  action,  or 
ney  v.  Ferguson,  18  Ark.  347;  Ken-  for  some  part  thereof,  as  the  plaint- 
dall  V.  Stokes,  3  How.  87.  In  Mc-  iff  seeks  to  recover  in  the  second,  in 
Intosh  V.  Lawn,  47  Barb.  550,  it  was  order  to  be  a  bar.  See  Warner  v. 
held  that  the  lease  in  question  con-  Bacon,  8  Gray,  397;  Clark  v.  Baker, 
iained  seven  distinct  and  independ-  5  Met.  452. 


GENERAL   PEINCIPLES.  185 

all  the  items,  to  make  them,  where  they  arise  at  different  times, 
a  single  or  entire  demand  or  cause  of  action.^  The  very  fact 
that  there  is  a  running-  account,  imports  that  the  parties  have  not 
been  accfistomed  to  treat  every  separate  matter  of  charge  as  a 
distinct  debt,  but  on  the  contrary  to  enter  it  in  the  account  to 
become  a  part  thereof  and  going  to  make  up  the  debt,  which 
consists  of  the  entire  balance  due.^  The  business  of  ship  car- 
penters was  carried  on  in  one  part  of  a  building,  under  the 
direction  of  two  of  the  partners  in  a  firm,  and  the  business  of 
ship  chandlers  in  another  part  of  the  same  building,  under  the 
direction  of  the  third  partner.  Separate  books  of  account  were 
kept  by  different  clerks  in  the  two  branches  of  business ;  and 
the  partners  confined  themselves  respectively  to  the  management 
of  one  of  the  branches,  without  personaUy  taking  part  in  the 
other.  Work  was  done  and  materials  furnished  from  the  car- 
pentry branch  in  the  repairing  and  equipping  a  brig,  upon  the 
order  of  her  captain,  to  the  amount  of  8139,  and  immediately 
thereafter  goods  and  articles  of  ship  chandlery  were  furnished 
to  the  same  brig,  and  on  the  order  of  the  same  captain,  at  dif- 
ferent times  through  a  period  of  a  month,  amounting  to  $521. 
It  was  held  that  the  two  accounts  did  not  constitute  an  enthe 
claim.^ 

In  an  action  for  money  had  and  received,  it  appeared  that  the 
defendant,  as  steward  of  the  plaintiff,  had,  between  April  and 
November,  1822,  received  large  sums  of  money,  for  timber  sold, 
and,  iu  December,  1821,  46^.,  for  rents ;  in  a  former  action,  a 
judgment  had  been  taken  by  default,  and  for  all  that  the 
plaintiff's  agent  thought  the  defendant  could  pay,  but  after- 
wards it  was  ascertained,  for  the  first  time,  that  the  steward 
had  received  the  said  amount  for  rents.  The  court  held,  that 
all  the  sums,  which  the  plaintiff  knew  the  defendant  had  re- 
ceived, at  the  time  when  he  commenced  the  former  action,  were 
to  be  considered  as  included  in  and  constituting  one  entire  cause 
of  action,  and  the  recovery  was  confined,  in  the  last  action,  to 

'Secor  V,  Stiirges,    supra;    Born-  2  gomgesser  v.  Harrison,  13  Wis. 

gesser  v.    Harrison,    13    Wis.    544;  549. 

Walter  v.  Richardson,  11  Rich.  466;  ''Secor  v.  Sturges,  supra. 
Magruder  v.  Randolph,  77  N.  C.  79. 


18G  ENTLBETY    OF    DAMAGES. 

the  4G?.,  tlioiigli  the  defendant's  actual  receipts  for  timber  were 
very  much  greater  than  the  default  judgment.^ 

"Where  the  captain  of  a  steamboat  hired  a  barge,  and  executed 
to  the  owner  a  contract  to  pay  ten  dollars  per  day,  until  re- 
turned in  good  order  as  received,  but  mentioning  no  time  when 
it  should  be  returned  or  the  money  paid,  it  was  held,  that  the 
barge  was  to  be  returned  in  a  reasonable  time,  under  the  cir- 
cmnstances  of  the  service  for  which  it  was  hired ;  the  stipulated 
rent  or  hire  would  then  be  payable ;  that  the  contract  was  en- 
tire and  not  divisible ;  and  that  an  action  brought  thereon,  after 
the  expiration  of  such  reasonable  time,  for  the  amount  then  due 
for  the  hire  of  the  barge,  at  the  rate  specified  in  the  contract, 
was  a  bar  to  a  subsequent  action,  on  the  same  contract  for  hire 
accruing  after  the  period  embraced  in  the  judgment  recovered 
in  the  former  action.^  The  court  say  upon  this  case :  "  If  the 
barge  were  not  returned  upon  demand  in  a  reasonable  time,  it 
would  be  a  breach  of  the  contract  for  the  return.  The  right  of 
the  party  in  such  a  case  is  not  to  exact  the  ten  dollars  a  day 
perpetually,  but  to  charge  at  that  rate  for  a  reasonable  time, 
and  then  to  collect  the  value  of  the  barge,  and  by  suing 
(in  the  former  action)  .  .  he  in  eifect  averred  that  the 
reasonable  time  had  expired,  and  the  whole  became  due."  ^ 

Continuing  obligations. —  Where  the  defendant  had  cove- 
nanted, in  1822,  that  the  plaintiff  should  have  a  continual  supply 
of  water  for  his  mill  from  the  defendant's  dam,  and  totally 
failed  to  perform  after  1826,  and  in  1835  the  plaintiff  brought 
an  action  for  the  breach  and  recovered  damages  sustained  by 
him  up  to  that  time,  it  was  held  a  bar  to  a  second  action  aris- 
ing from  a  subsequent  failure  to  perform.^  Nelson,  C.  J.,  said : 
"  It  is  true,  the  covenant  stipulated  for  a  continued  supply  of 
water  to  the  plaintiff's  mills ;  and  in  this  respect  it  may  be  ap- 
propriately styled  a  continuing  contract.  Yet,  like  any  other 
entire  contract,  a  total  breach  put  an  end  to  it,  and  gave  the 

'  Lord  Bagot  v.  Williams,  3  B.  &  ^  See  Bradley  v.  "Washington,  etc. 

C.  235;  Riseley  v.  Squire,  53  Barb.  280.  Co.  9  Pet.  107. 

**  Steen  v.  Steamboat  Prairie  Rose,  •*  Fish  v.  Folley,  6  Hill,  54, 
17  Ohio  St.  473. 


GENEKAL   PRINCrPLES.  187 

plaintiff  the  right  to  sue  for  an  equivalent  in  damages.  He 
obtained  that  equivalent,  or  should  have  obtained  it,  in  the 
former  suit." 

An  agi-eement  by  one  party  to  support  another  during  life  is 
a  similar  continuing  entire  contract.^  A  separate  action  may  be 
maintained  whenever  there  is  a  new  cause  of  action,  wdiether  it 
arises  at  the  same  time  as  another  cause,  or  at  a  different  time ; 
but  it  must  exist  and  be  complete  before  the  action  is  brought.^ 

l^OT  NECESSARY  THAT  ALL  THE  DAMAGES  ACCRUE  BEFORE  THE  AC- 
TION corMExcED. —  It  is  not  essential,  however,  that  all  the  in- 
jurious effects  of  the  act,  which  constitutes  the  cause  of  action, 
should  have  been  developed  and  suffered  before  suit ;  it  is  imma- 
terial to  the  right  to  recover  for  them,  when  the  effects  manifest 
themselves,  with  reference  to  the  time  of  bringing  the  suit. 
But  it  is  practically  material,  to  the  plaintiff,  that  the  effects  be 
so  manifest,  before  and  at  the  time  of  the  trial,  as  to  be  sus- 
ceptible of  proof.  The  actual  effects,  down  to  the  time  of  the 
trial,  are  provable ;  and,  whether  those  which  may  ensue  later 
may  be  taken  into  account,  will  depend  on  whether  they  are 
imminent  and  sufficiently  certain.^ 

Interest,  which  is  the  accessory  of  the  principal,  does  not  stop 
at  the  commencement  of  the  action,  but  may  always  be  com- 
puted down  to  the  verdict.* 

But  whether  continuing  damages  may  be  computed,  after  the 
3ommencement  of  the  suit,  will  depend  on  whether  they  pro- 
ceed from  the  act  complained  of  in  that  suit  as  the  cause  of 
action,  or  whether  they  proceed  from  some  later  act  constituting 
a  fresh  cause  of  action.^ 

'Schell  V.  Plumb,  55  N.  Y.  592;  see  State  Bank  v.  Fox,  3  Blatchf. 

Schaffer  v.  Lee,  8  Barb.  413;  Dresser  431. 

T.  Dresser,  35  Barb.  573;  Sibley  v.  ^  Filer  v.   The  N.  Y.  Cent.  R.  R, 

Rider,  54  Me.  406;  Philbrook  v.  Bur-  Co.  49  N.  Y.  42;  Hay  den  v.  Albee,  20 

gess,  52  Me.  271;   Fales  v.  Hemen-  Minn.  159;  Hagan  v.  Riley,  13  Gray, 

way,  64  Me.  373;  Miller  v.  Wilson,  515;  Spear  v.  Stacy,  26  Vt,  61;  Fort  v. 

24  Pa.  St.  114;  see  Ferguson  v.  Fer-  Union  P.  R.  R.  Co.  2  Dill.  259. 

guson,  2  N.  Y.  360.  •'Robinson  v.  Bland,  2  Burr,  1077; 

*  Howell  V.  Young,  5  B.  &  C.  267;  Hovey    v.    Newton,    11    Pick.    420; 

Warner  v.  Bacon,  8  Gray,  397;  Prince  Duncan  v.  Markley,  Harp.  179. 

V.  Moulton,  Ld.  Raym.  248;  Harbin  '  Ti'oy  v.  Cheshire  R.  R.  Co.  23  N. 

V.   Green,    Hob.    189;   Coggeshall  v.  H.  102;   Hicks  v.    Herring,  17   Cal. 

Coggeshall,  Adni.  2  Strobh.  L.   51;  566;  Phillips  v.  Terry,  3  Keyes,  313. 


188 


ENTIRETY   OF   DAMAGES. 


A  judginent  creditor  in  lieu  of  her  judgment,  agreed  to 
accept  the  bond  of  another  conditioned  for  her  maintenance 
during  hfe,  or  to  pay  her,  if  she  preferred  it,  $150  per  annum ; 
the  bond  to  be  secured  by  a  mortgage  on  the  land  of  the  obhgor. 
The  defendant  was  employed  to  prepare  the  instrument,  and  to 
have  the  mortgage  entered  of  record  ;  and  he  withheld  it  from 
record  until  the  property  became  otherwise  encumbered  by 
claims  to  an  amount  beyond  its  value,  and  the  debtor  became 
insolvent.  It  was  held  in  an  action  on  the  case  that  the  injured 
party  could  recover  all  that  she  had  lost  or  was  hkely  to  lose  by 
the  defendant's  default ;  all  that  the  mortgage  if  duly  recorded 
would  have  been  worth  to  her.^     Where  the  defendant  under- 


1  Miller  v.  Wilson,  M  Pa.  St.  114. 
In  this  case  Black,  C.  J.,  said:  "  The 
argument  is  made  that  the  plaintiff 
has  not  yet  suffered  any  loss  from 
the  defendant's  violation  of  duty; 
and  that  she  can  recover  from  Mil- 
ler only  in  case  Carson  (the  obligor 
in  the  bond)  makes  default;  because 
tlie  mortgage  being  but  a  security 
for  the  bond,  there  is  nothing  due 
on  the  former  until  the  condition  of 
the  latter  is  broken.  But  we  hold 
it  clear  law  that  Miller  did  not 
merely  substitute  his  personal  re- 
sponsibility in  place  of  the  mort- 
gage; that  he  did  not  become  Car- 
son's surety  in  the  bond;  but  that 
he  subjected  himself  to  an  immedi- 
ate action  in  which  the  plaintiff 
may  recover  compensation  for  all 
she  has  lost,  and  all  she  is  likely  to 
lose,  through  his  misconduct. 

"On  a  contract  to  pay  money  at 
stipulated  periods,  there  may  be  as 
many  suits  as  there  are  instalments; 
for  every  failure  to  pay  is  a  fresh 
breach  of  the  contract;  and  there 
can  be  no  recovery  except  for  what 
is  due  at  the  time  of  suit  brought. 
But  on  a  tort,  or  on  a  duty  or  i)rom- 
ise,  which  has  already  been  violated 
ae  grossly  as  it  ever  can  be,  there  is 
but  one  action,  and  in  that  the  in- 


jured party  must  have  full  justice. 
Wlien,  in  the  language  of  Chief 
Justice  Best  (2  Bingham,  229),  the 
thing  has  but  one  neck,  and  that  is 
cut  off  by  the  act  of  the  defendant, 
it  would  be  mischievous  to  drive 
the  plaintiff  to  a  second,  third  or 
fourth  action,  as  the  successive  con- 
sequences of  the  wrong  may  arise. 
It  is  not  true,  even  as  a  general  rule, 
that  courts  will  not  anticipate  a  loss 
in  futuro.  If  a  man  destroys 
my  orchard,  I  may  demand  full  rep- 
aration at  once;  and  I  am  not 
compelled  to  sue  every  year  for 
each  crop  of  fruit  I  lose.  In  slan- 
der, the  damages  are  swelled  by 
all  the  sufferings  which  the  want  of 
a  good  name  may  occasion  subse- 
quently. In  an  action  for  battery, 
the  plaintiff  shall  recover  for  aU  the 
injuries  likely  to  result  from  the 
wounds  inflicted  by  his  adversary 
(1  Ld.  Eaym.  339).  He  who  sues  for 
the  loss  of  an  office  or  employment, 
is  entitled  to  a  verdict  at  once  for 
the  whole  value  of  it,  without  wait- 
ing until  the  profits  would  have 
reached  his  pocket  (2  Bingham,  229). 
But  we  need  not  resort  to  analogies. 
A  case  directly  in  point  is  that  of 
HoweU  V.  Young,  5  B.  &  C.  259. 
There  an  attorney  was  employed  to 


GENERAL   PRINCIPLES. 


ISO 


took  with  the  plaintiff  to  be  surety  for  another,  if  the  plaintiff 
would,  let  to  him  a  specified  house  at  a  rent  stated,  and  would, 
execute  an  agreement  to  that  effect,  but  did  not,  it  was  held, 
that  the  defendant's  undertaking  was  entire,  not  to  pay  the  rent 
as  it  became  due  from  time  to  time,  but  to  execute  an  obhgation 


ascertain  whether  certain  mortgages 
were  a  sufficient  security  for  a  loan 
of  £3,000,  and  falsely  informed  his 
client  that  they  were.  It  was  held 
that  in  a  action  against  the  attoi'ney 
the  client  might  recover  for  all  the 
probable  loss  he  was  likely  to  sus- 
tain from  the  invalidity  of  the  se- 
curity. The  right  of  action  in  such 
cases  accrues  at  the  time  when  the 
contract  or  duty  of  the  defendant 
is  violated,  and  if  suit  be  not 
brought  within  six  years  afterwards, 
the  statute  of  limitations  is  a  fiat 
bar,  no  matter  when  the  conse- 
quential loss  may  have  liappened. 

"  The  defendant  has  deprived  the 
plaintiff  of  what  she  relied  on  for 
a  living;  and  this  judgment  is  less 
than  it  ought  to  be,  if  it  does  not 
place  her  in  as  good  a  condition, 
present  and  prospective,  as  he 
would  have  left  her  in  by  doing  his 
duty.  It  is  vain  to  say  she  has  suf- 
fered no  real  loss.  A  debt  worth  to 
her  $1,800,  has  been  converted  into 
a  thing  of  no  value.  The  defendant 
found  her  in  possession  of  what  her 
fragal  habits  taught  her  to  think 
sufficient;  he  left  her  'as  poor  as 
winter.'  If  he  had  taken  the  sum 
out  of  her  pocket  in  money,  she 
must,  according  to  his  reasoning, 
suffer  the  extremity  of  the  conse- 
quences before  she  has  a  right  of 
action;  and  therefore  she  can  bring 
no  suit  until  she  starves.  But  hu- 
man nature  will  not  endure  such 
logic.  The  law  is  made  for  practi- 
cal uses.  It  listens  to  no  metaphys- 
ical subtleties;  and  will  not  consent 
on    any  terms,    to    call  that  right 


which  every  sound  heart  feels  to  be 
wrong.  The  value  of  wealth,  be- 
yond what  is  barely  necessary  for 
the  present  hour,  consists  in  the 
consciousness  of  having  it,  and  the 
comfortable  security  it  affords  the 
possessor  against  future  want.  A 
cautious  pi'ovidence  for  the  time  of 
need,  which  may  come  hereafter,  is 
one  of  the  attributes  which  distin- 
guish the  race  of  man  from  the 
lower  animals.  The  fear  of  becom- 
ing destitute  is  a  sentiment  as  uni- 
versal as  it  is  necessary  to  the  well- 
being  of  the  world.  When  that 
fear  is  grounded  on  the  absence  of 
any  accumulation  which  may  serve 
as  a  support,  it  is  poverty, —  a  real, 
substantial,  and  sore  evil,  from 
which  every  well  constituted  person 
who  feels  will  seek  reUef ,  by  the  ut- 
most exertion  of  mind  and  body. 
Here  was  a  woman  who  consented 
to  give  up  all  she  had  in  considera- 
tion that  $150  per  annum,  for  the 
term  of  her  life,  should  be  secured 
to  her  beyond  the  reach  of  accidents 
by  a  mortgage.  That  mortgage  was 
everything  in  the  world  that  lay  be- 
tween her  and  the  poor-house.  By 
withholding  it  from  the  record,  the 
defendant  left  her  to  meet  the  ad- 
versities of  life  unarmed,  naked,  de- 
fenseless, and  '  steeped  in  poverty 
to  the  very  lips.'  Her  counsel  would 
send  her  to  Carson  for  support  —  to 
Carson  who  has  no  means  of  keep- 
ing the  wolf  from  his  own  door. 
Why  did  they  not  tell  her  that  she 
might  possibly  be  fed  and  clothed 
by  public  charity.  She  must  be 
made  whole  now  or  never  —  in  this 


IDU  ENTIRETY    OF    DAMAGES. 

to  do  so,  and  that  only  one  action  conld  be  brought  on  liis 
contract.^ 

Where  a  personal  injury,  or  an  injury  to  property,  is  com- 
mitted by  a  single  tortious  act,  that  act  is  a  cause  of  action,  and 
all  the  consequences  for  which  compensation  may  be  recovered 
are  an  entirety ;  recovery,  therefore,  may  be  had  once  for 
all,  in  one  action,  and  only  in  one  action,  which  may  be 
brougiit  at  any  time  after  the  act  is  committed.'^  So  of  any  act 
done  or  default  made  which  is  a  breach  of  any  stipulation  in  a 
contract ;  it  is  a  single  and  entire  cause  of  action,  embracing  all 
ensuing  consequences  for  which  compensation  is  allowed ;  and 
however  multifarious  may  be  the  stipulations  in  a  contract,  any 
act  which  amounts  to  a  total  breach,  constitutes  but  a  single 
cause  of  action  ;  ^  unless  perhaps  where  the  stipulations  are  so 
distinct,  and  relate  to  subjects  so  disconnected,  as  to  have  no 
relation  or  unity  but  such  as  results  from  being  made  at  the 
same  time,  or  contained  in  one  instrument.*  I*^or  can  an  entire 
claim  be  severed  by  partial  assignments,  so  as  to  become  the 
foundation  of  several  suits  instead  of  one.^ 

CoNTKACTs  OF  INDEMNITY. —  Upoii  coutracts  of  indemnity,  if 
there  has  been  a  breach  before  suit  brought,  any  actual  dam- 
age subsequently  resulting  therefrom,  or  payments  made  by 
the  indemnilied  party  covered  by  the  agreement,  after  as  well 
as  before  the  commencement  of  suit,  and  down  to  the  time 

action  or  in  none.  That  can  be  R.  Co.  18  N.  Y.  534;  Drew  v.  Sixth 
done  by  allowing  her  to  recover  all  Av.  R.  R.  Co.  26  N.  Y.  49;  Fetter  v. 
that  the  security  she  lost  was  Beale,  1  Salk.  11;  Towle  v.  N.  H.  etc. 
worth  —  what  a  prudent  person  in  R.  R.  Co.  107  Mass.  352;  Hochster  v. 
her  circumstances  would  be  willing  Delatour,  2  E.  &  B.  67;  Miller  v. 
to  give  it  up  for  —  the  difference  in  Wilson,  24  Pa.  St.  114;  Vighte  v. 
value  between  her  debt  made  abso-  Hoagland,  20  N.  J.  L.  249;  Thomp- 
lutely  safe  by  a  mortgage,  and  the  son  v,  Ellsworth,  39  Mich.  719;  Dai- 
same  debt  with  no  security  except  ley  v.  Dismal  Swamp  C.  Co.  2  Ired. 
the  personal  responsibility  of  an  in-  L.  222. 

solvent  man.     How  much  is  that  ?  '  Jacobs    v.    Davis,    34    Md.    206; 

The  court  fairly  and  carefully  put  Waterbury  v,  Graham,  4  Sandf.  215: 

this  question  to  the  jury,  and  their  Bancroft  v,  Winsfear,  44  Barb.  209; 

verdict  the  answer."  Spear  v.  Stacy,  26  Vt.  61. 

'  Waterbury  v.  Graham,  4  Sandf.  ■*  Mcintosh  v.  Lawn,  49  Barb.  550. 

215.  ^  Chicago,  etc.  R.  R.  Co.  v.  Nichols, 

■^  Brewer  v.  Waterwitch,  19  How.  57  111.  464. 
Pr.  241;  Curtis  v.  Rochester,  etc.  R. 


GENERAL    TRINCIPLES.  191 

of  the  trial,  may  be  included  in  the  recovery.^  So  if  the  de- 
fendant's breach  of  any  contract,  or  his  wrongi'ul  act,  has  in- 
volved the  injured  party  in  a  legal  liabihty  to  pay  money,  or  to 
incm'  indebtedness  to  a  third  person,  or  expenses  to  relieve 
against  the  effects  of  the  act  which  constitutes  the  cause  of  ac- 
tion, such  hability,  indebtedness  or  expenses,  paid  or  not,  con- 
stitute elements  of  damage,  without  regard  to  the  time  when 
the  liability  was  actually  incurred  or  discharged.^ 

(WiiEKE  PKOPERTY  TAKEN  FOR  PEELic  USE. —  Damages  assesscd 
upon  the  taking  of  property  in  the  exercise  of  the  power  of 
eminent  domain  include  prospective  as  well  as  present  damages ; 
they  are  an  entirety ;  and  all  such  as  will  proceed  from  that 
cause  and  be  suffered  in  the  future,  are  presumed  to  have  been 
anticipated.^^ 

"What  is  not  a  double  remedy. —  In  an  attachment  in  equity 
against  B  and  A,  the  property  of  A  was  taken  as  the  property 
of  B,  and  being  perishable,  it  was  sold  under  an  order  of  the 
court,  and  afterwards  the  court  decreed  that  the  sheriff  pay  the 
proceeds  of  sale  to  A.  The  sheriff  faihng  to  pav,  A  moved 
against  him  and  his  sureties,  and  judgment  was  entered  for  the 
penalty  of  his  bond,  to  be  discharged  by  the  paj^nent  of  the 
proceeds,  and  they  were  ]3aid.  Previous  to  the  decision  of 
the  court  in  favor  of  A,  he  brought  an  action  on  the  official 
bond  of  the  sheriff,  against  him  and  his  sureties,  for  the  trespass 

1  Spear  v.  Stacy,  26  Vt.  61.  peake  Canal  v.  Grove,  11  Gill  &  J. 

2  Dixon  V.  Bell,  1  Stark.  287;  Hagan  398;  Furniss  v.  Hudson  River  R.  R. 
V.  Riley,  13  Gray,  515;  Smith  v.  Co.  5  Sandf.  551;  Baltimore  R.  R. 
Howell,  6  Ex.  730;  Kenyon  v.  Wood-  Co.  v.  Magruder,  34  Md.  79;  Missouri 
ruflf,  33  Mich.  310;  Spear  v.  Stacy,  R.  R.  Co.  v.  Haines,  10  Kan.  439;  La 
26  Vt.  61.  Fayette  R.  R.  Co.  v.  New  Albany. 

«Perley  v.  B.  C.  &  M.  R.  R.  Co.  57  13  Ind.  90;  Montmorency  R.  Co.  v. 

N.  H.  212;  Sawyer  v.  Keeue.  47  N.  Stockton,    43    Ind.    328;    Evans    v. 

H.  173;  iVldrich  v.  Cheshire  R.    R.  Haefner.  29  Mo.  141;  Baker  v.  Jolin- 

Co.  21  N.  H.  359;  Fowle  v.  N.  H.  etc.  son,  2  Hill,  342;  Call  v.  Middlesex,  3 

R.  R.  Co.  107  Mass.   52;    Fowle  v.  Gray,  233;  Vighte  v.   Hoaglaud,  20 

New  Haven  Co.  112  Mass.  334;  Van  N.  J.  L.  249;  Van  Schaick  v.    The 

Scliaick  V.  Delaware  Canal.  20  N.  J.  Delaware,  etc.    Co.  20  N.  J.  L.  249; 

L.  2-19;  Water  Co.  v.  Chambers,  13  but    see    Lancasliire    R.   R.   Co.   v. 

N.  J.    Eq.    199:  Waterman  v.   Con-  Evans,  15  Beav.  322. 
necticut  R.  R,  Co.  30  Vt.  610;  Chesa- 


192 


ENTIRETY   OF   DAMAGES. 


in  taking  liis  goods  ;  and  the  former  judgment  and  its  payment 
were  set  up  in  defense ;  but  it  was  held  that  the  action  was  not 
thereby  barred ;  but  A  might  recover  the  difference  between 
the  vahie  of  the  goods  at  the  time  they  were  taken  under  the 
attachment,  and  the  amount  of  the  proceeds  of  sale  paid  to  A.^ 


'  Saugster  v.  Commonwealth,  7 
Gratt.  124.  .In  deciding  this  case, 
Moncure,  P.,  explained  the  legal  ef- 
fect of  the  decree  disposing  of  the 
proceeds  in  the  attachment  cases. 
He  said:  "We  are  of  opinion  that 
he  has  not  lost  his  right  of  action 
in  this  case.  It  is  true  that  where  a 
plaintiff  has  concurrent  remedies  for 
the  same  demand,  and  elects  one  of 
them,  and  prosecvites  it  to  a  judg- 
ment, he  cannot  then  resort  to  an- 
other, but  is  bound  by  his  election 
althougli  it  may  be  a  bad  one.  It  is 
also  true  that  he  cannot  divide  one 
cause  of  action  into  two.  The  plain 
reason  of  these  rules  of  law  is,  that 
a  defendant  will  not  be  suffered  to 
be  harassed  by  two  suits  when  one 
would  answer  all  the  purposes  of 
justice.  Therefore,  when  A  wrong- 
fully takes  the  property  of  B  and 
sells  it,  B  may  bring  trespass,  trover, 
detinue,  or  assumpsit  for  money  had 
and  received,  against  A  at  his  elec- 
tion; but  having  elected  one  of  these 
forms  of  action  and  prosecuted  it  to 
judgment,  Jie  cannot  then  abandon 
it  and  bring  another.  Trespass  com- 
prehends the  whole  injury,  as  well 
the  wrongful  taking  as  the  wrongful 
detention  or  conversion,  and  the 
value  of  the  property,  unless  it  be 
restored.  By  bringing  detinue  or 
trover,  the  plaintiff  waives  all  claim 
for  the  wrongful  taking  of  the 
property ;  and  by  bringing  assumpsit, 
he  also  waives  all  claim  for  the 
wrongful  detention  and  conversion, 
affirms  the  sale,  and  makes  the  pro- 
ceeds of  it  money  had  and  received 
to  his  use.    It  would  be  inconsistent 


to  permit  him,  after  electing  and 
prosecuting  to  judgment  either  of 
the  three  last  named  actions,  and 
especially  the  last,  to  resort  to  the 
first.  The  case  of  Hite  v.  Long,  6 
Rand.  457,  relied  on  by  the  counsel 
for  the  plaintiffs  in  error,  involved 
this  i^riuciple.  But  tlie  principle 
does  not  apply  to  this  case.  The 
attachment  suits  were  brought  by 
the  relator.  The  attachments  were 
levied  upon  his  property,  and  he 
was  made  a  home  defendant  to  the 
suits,  which  were  foreign  attach- 
ments in  equity.  He  was  not  a  debt- 
or of  the  plaintiffs,  nor  was  his  title 
to  the  property  in  question  brought 
in  controversy  by  the  biUs.  The  at- 
tachments against  the  debtor  defend- 
ant were  levied  on  his,  the  relator's, 
property,  and  thus  a  trespass  was 
committed  by  the  sheriff  who  made 
the  ie^^.  The  relator,  being  made 
a  defendant  in  the  case,  of  course 
asserted  therein  his  claim  to  the 
property,  as  he  coidd,  and  no  doubt 
would  have  done,  if  he  had  not  been 
made  a  defendant.  The  property 
being  perishable,  was  in  the  pro- 
gress of  the  suit  decreed  to  be  sold. 
Afterwards,  the  question  of  title 
being  decided  in  favor  of  the  relator, 
the  proceeds  of  sale  were  decreed  to 
be  paid  to  him  by  the  sheriff  who 
made  it;  but  not  being  paid,  the 
amount  was  recovered  by  motion 
against  him  and  his  sureties.  Now 
this  was  altogether  a  different  claim 
from  that  of  the  relator  against  the 
sheriff  for  the  trespass.  The  sheriff 
was  not  a  defendant  to  the  attach- 
ment suits.     The  main  controversy 


GENERAL    PRINCEPLES. 


193 


If  tlie  master  of  a  Tvhaling  vessel  abandons  the  voyage,  and 
%Yrongfidly  sells  the  property  of  the  owner,  on  board,  the  subse- 
quent collection  of  a  part  of  the  proceeds  of  such  sale,  is  no  bar 
to  an  action  against  him  for  breaking  up  the  voyage  and  dispos- 
ing of  the  property,  but  reduces  the  damage.* 

Peospecttv^e  damages. —  In  the  application  of  the  rule  that  all 
the  damages  which  pertain  to  a  cause  of  action,  without  refer- 
ence to  the  time  when  they  actually  accrue,  are  entire,  and  that 
such  damages  cannot  be  recovered  piecemeal,  by  successive 
actions,  it  is  necessary  sometunes,  and  not  unfrequently,  to  take 
into  consideration  damages  which  have  not  been  actually  suf- 
fered, either  at  the  commencement  of  the  suit  or  the  trial ;  for, 
otherwise,  there  would  have  to  be  a  very  inconvenient  postpone- 

said  can  have  no  greater  effect.  The  j 
have  had  that  effect  by  the  proceeds 
of  sale  being  credited  on  the  amount 
due  for  the  value  of  the  property,  in 
the  action  brought  by  the  relator 
against  the  sheriff  and  his  sureties 
for  the  trespass.  The  relator  would 
probably  have  been  wiUing  to  have 
received  his  property,  after  it  was 
taken  under  the  attachments,  if  it 
had  not  been  impaired  in  value,  and 
to  have  asserted  no  further  claim 
for  the  trespass.  But  it  seems  to 
have  been  impaired  in  value  while 
in  the  hands  of  the  sheriff,  and  at 
aU  events  was  sold  for  less  than  half 
of  its  value  at  the  time  it  was  taken. 
The  relator  then,  and  before  the  pro- 
ceeds of  sale  were  decreed  to  be 
paid  to  him  or  the  question  of  title 
was  decided  in  his  favor  in  the  at- 
taclunent  suits,  brought  his  action 
for  the  trespass  on  the  official  bond 
of  the  sheriff.  That  action  came  on 
to  be  tried  after  he  recovered  Mid  re- 
ceived the  amount  decreed  to  him 
in  the  attachment  suits  as  aforesaid, 
and  he  recovered  in  the  action  the 
value  of  his  property  when  taken, 
credited  by  the  amount  of  the  pro- 
ceeds of  the  sale  of  it." 

'  Brown  v.  Smith,  12  Cush.  366. 


in  that  case  was  between  the  attach- 
ing creditors  and  their  debtor;  inci- 
dental to  which  was  a  controversy 
betAveen  the  former  and  the  relator, 
as  to  whether  the  property  attached 
belonged  to  him  or  their  debtor. 
That  controversy  was  determined  in 
the  relator's  favor,  and  of  course 
the  proceeds  of  the  property  were 
decreed  to  be  paid  to  him.  They 
could  not  be  decreed  to  be  loaid  to 
the  creditors,  because  the  property 
did  not  belong  to  their  debtor,  nor 
to  the  sheriff,  because  not  only  did 
not  the  property  belong  to  him,  but 
it  would  have  been  real  injustice 
both  to  his  sureties  and  to  the  owner 
of  the  property  to  have  made  such  a 
decree.  The  only  proper  disposition 
of  the  money,  therefore,  was  to  de- 
cree it  to  be  paid  to  the  owner  of  the 
property.  But  such  decree  and  pay- 
ment cannot  extinguish  his  claim 
against  the  sheriff  for  the  trespass, 
any  more  than  would  the  return  of 
the  property  itself  to  him,  either  by 
the  sheriff  who  took  it,  or  by  the 
order  of  the  court  in  the  attachment 
suits.  The  only  effect  of  such  re- 
turn would  be  to  mitigate  the  dam- 
ages in  the  action  for  the  trespass, 
and  the  decree  and  payment  afore- 


194  ENTIBETY   OF   DAMAGES. 

ment  of  that  class  of  actions,  or  a  renunciation  of  a  large  part 
of  the  compensation,  due  to  the  injured  party.  When  a  cause 
of  action  accrues,  there  is  a  right,  as  of  that  date,  to  all  the  con- 
sequent damages  which  will  ever  ensue.^  They  are  recoverable, 
if  they  can  be  proved  in  one  action,  and  only  one  action  can 
be  maintained  ;  the  suit  may  be  brought  at  any  time  after  the 
accrual  of  the  right  of  action.  The  question  is  a  practical  and 
legal  one  in  each  case,  whether  the  cause  of  action  is  of  such  a 
nature  that  the  injurious  consequences  of  the  act  complained  of 
can  reach  into  the  future,  or  whetlier  any  subsequent  damages 
will  be  owing  to  a  continuous  fault  which  may  be  the  founda- 
tion of  a  new  action.  So  is  the  question  whether  any  offered 
evidence  tends  to  prove  future  damages  which  are  the  legal 
result  of  the  act  which  constitutes  the  cause  of  action,  and 
whether  the  sum  of  the  evidence  in  the  particular  case  is  sufficient 
for  the  consideration  of  the  jury. 

If  a  growing  crop  is  destroyed,  it  can,  of  course,  never  be  shown 
with  absolute  certainty  that,  but  for  such  destruction,  it  would 
have  matured ;  nor  that  a  party  who  is  stopped  by  the  other  in 
the  performance  of  a  special  contract,  would  otherwise  have 
proceeded  to  a  complete  execution  of  it,  so  as  to  entitle  himself 
to  the  full  benefits.  Kor  is  it  matter  of  law  that  the  jury  shall 
assume  in  the  one  case  that  the  crop  would  have  matured,  or 
that  the  contract,  in  the  other,  would  have  been  fulfilled.  The 
jur}^  may  estimate,  with  the  aid  of  testimony,  the  value  of 
the  crop  at  the  time  of  its  destruction,  in  view  of  all  the  cir- 
cumstances existing  at  that  time,  as  well  as  at  any  time 
before  the  trial,  favoring  or  rendering  doubtful  the  conclusion 
that  it  would  attain  to  a  more  valuable  condition,  and  all  the 
hazards  and  expenses  incident  to  the  process  of  supposed  growth 
or  appreciation.'^  The  same  uncertainties,  and  a  greater  surface 
of  them,  are  encountered  m  actions  upon  warranties  that  seeds 
sold  for  planting  are  of  particular  varieties.^ 

'  Lamb  v.  Walker,  3  Q.  B.  D.  389.  s  jjandaU  v.  Raper,  E.  B.  &  E.  84; 

''Taylor  v.  Bradley,  39  N.  Y.  129;  Passenger  v.  Thornburn,  34  N.  Y. 

People's  Ice  Co.  v.  Steamer  Excel-  634;  White  v.  Miller,  7  Hun,  427;  71 

sior,  44  Mich.  229;  Smith  v.  Chicago,  N.  Y.  118;  Van  Wyck  v.  Allen,  69  N. 

etc.  R.  R.  Co.  38  Iowa,  518;  Richard-  Y.  61;  Walcot  v.  Mount,  36  N.  J.  L. 

son  V.  Northrup,  66  Barb.  85;  Folsom  262;  Ferris  v.   Comstock,  33  Conn. 

V.  Apple  R.  L.  D.  Co.  41  Wis.  602.  513. 


GENERAL   PKIXCirLES.  195 

In  actions  upon  contracts  which  contemplate  a  series  of  acts 
and  a  considerable  period  of  time  for  performance,  a  party  com- 
plaining of  a  total  breach  l)y  the  other,  sufficiently  maintains 
his  right  to  recover  if  he  has  performed  without  default  up 
to  the  time  of  the  breach  and  is  ready  still  to  proceed,  though 
his  right  to  the  value  of  the  contract  depends  on  his  ability 
and  inclination  to  prosecute  the  performance  on  his  part  to 
completion.  He  is  entitled  to  recover  the  profits  which  he 
would  have  made, —  the  contract  price,  less  what  he  would  have 
to  do  or  expend,  to  earn  or  otherwise  entitle  himself  to  it.  This 
deduction  may  be  the  price  of  labor  or  the  value  of  property  at 
a  future  day.  The  action  for  damages  recoverable  for  such  a 
breach  may  be  brought  and  tried  before  that  day  arrives.  If 
so,  the  prices  prevailing  at  the  time  of  the  breach  may  be  acted 
upon  as  the  test  of  values  at  the  times  mentioned  in  the  con- 
tract ;  ^  but  if  the  trial  be  delayed  until  the  date  fixed  for  per- 
formance, the  parties  may  show  the  prices  actually  prevailing 
then,  or  any  other  conditions,  favorable  or  otherwise,  aifecting 
the  cost  of  fulfilling  the  contract.' 

Certainty  of  proof  of  future  damages. —  There  is  a  con- 
servatism pervading  the  law  opposed  to  allowing  compensation 
for  probable  loss.  It  manifests  itself  more  particularly  in  re- 
spect to  those  damages  which  might  be  proved  with  certainty 
if  they  were  real ;  and,  if  not  fanciful  and  miaginary,  are  past 
damages ;  not  such  as  are  contemplated  to  arise  in  the  futm^e 
from  such  causes  as,  according  to  the  general  experience,  pro- 
duce them.  The  decided  cases  which  relate  to  prospective  dam- 
ages warrant  the  statement  that  tlie  injured  party  is  entitled  to 
recover  compensation  for  such  elements  of  damage  as  are  likely 
to  occur ;  the  jury  may  proceed  upon  reasonable  probabilities ; 
and  accept  as  sufficiently  proved  those  results  which,  under  hke 
circumstances,  generally  come  to  pass.^     It  is  not,  however,  to 

'Masterton  v.  Mayor,  etc.  7  Hill,  322;  L.  R.  7  Ex.  Ill;  Taylor  v.  Brad- 

61.  ley,  39  N.  Y.  129;  Howard  v.  Daly, 

^Burwell  v.  New  Y.  etc.  Salt  Co.  61  N.  Y.  362;  Eichmond  v.  Dubuque, 

14    Mich.  34;    People's    Ice    Co.   v.  etc.  R.  R.  Co.  40  Iowa,  264;  Jacobs 

Steamer  Excelsior,  44  Mich,  supra;  v.   Davis,    34    Md.    206;    Grover  v. 

Chicago     V.    Green,    9    Wall.    726;  Buck,  34  Mich.  519. 

Hochester  v.  De  la  Tour,  2  E.  &  B.  =*  Lewis  v.  Atlas  M.  L.  Ins.  Co.  61 

678;  Frost  v.  Knight,  L.  R.  5  Ex.  Mo.  534;  Howell  v.  Young,  5  B.  &  C. 


196  ENTIEETT   OF  DAMAGES/ 

be  hence  inferred  that  prospective  damages  may  be  recovered 
on  every  plausible  anticipation ;  nor  that  no  allowance  is  to  be 
made  for  the  uncertainties  which  affect  all  conclusions  depend- 
ing on  future  events ;  it  is  only  intended  that  such  uncertainties, 
where  the  damages  are  shown  by  evidence  reasonably  certain, 
do  not  exclude  them  wholly  from  consideration.  The  price  of 
an  average  colt  cannot  be  fixed  by  deducting  the  cost  of  its 
keep  from  the  value  of  an  average  horse,  for  there  is  not  a  cer- 
tainty of  exemption  from  accidents  and  disease. 

All  the  damages  from  a  single  tortious  act  are  an  entirety, 
and  must  be  assessed  and  recovered  once  for  all.^  Successive 
actions  cannot  be  maintained  for  recovery  of  damages,  as  they 
may  accrue  from  time  to  time.  The  injiu-ed  party  is  entitled  to 
recover  in  one  action  compensation  for  all  the  damages  result- 
ing from  the  injury,  whether  present  or  prospective.  And  in 
respect  to  the  latter,  the  rule  is  that  he  can  recover  for  such  as 
it  is  shown  with  reasonable  certainty  will  result  from  the  wrong- 
ful act  complained  of  ."^ 

Action  foe  enticing  away  apprentice,  servant  or  son. — In 
an  action  for  enticing  away  an  apprentice,  damages  cannot  in- 
clude the  loss  of  his  services  for  the  residue  of  his  term,  for  it  is 
said  the  apprentice  may  return.^  Where  an  action  on  the  case 
was  brought  to  recover  damages  for  the  defendant's  act  of  en- 
ticing the  plaintiff's  minor  son  from  his  service,  and  inducing 
him  to  enlist  in  the  army  for  three  years,  it  was  held  that  the 
plaintiff  could  only  recover  damages  for  the  loss  of  service  up 

259;  Macrae  v.  Clark,  L.  R.  1  C.  P.  HodsoU  v.  Stollebrass,  11  A.  &E.  301; 
403;  Frye  v.  Maine  Central  R.  R.  Co.  Short  v.  McCartty,  3  B.  &  A.  626; 
67  Me.  414;  Richmond  v.  Dubuque,  Howell  v.  Young,  5  B.  &  C.  259;  In- 
etc.  R.  R.  Co.  40  Iowa,  264;  Schell  v.  graham  v.  Lawson,  8  Scott,  471; 
Plumb,  55  N.  Y.  592;  Missouri,  etc.  Clegg  v.  Dearden,  12  Q.  B.  576; 
R.  R.  Co.  V.  Fort  Scott,  ISKans.  485;  Hamer  v.  Knowly,  6  H.  &  N.  454. 
Roper  V.  Johnson,  L.  R.  8  C.  P.  167;  '^ Hambleton  v.  Veere,  2  Saund.  170; 
Peltz  V.  Eichele,  62  Mo.  171;  Suther-  Moore  v.  Love,  3  Jones'  L.  215;  Hod- 
land  V.  Wyer,  67  Me.  64;  Gifford  v.  soil  v.  Stollebrass,  11  A.  &  E.  301; 
Waters,  67  N.  Y.  80;  Richardson  v.  Trigg  v.  Northcut,  Litt.  Sel.  C.  414; 
Mellish,  2  Bing.  229.  Lewis  v.   Peachy,    1   H.   &  C.  518; 

1  Lamb  v.  Walker,  3  Q.  B.  D.  389.  Drew  v.  Sixth  Av.  R.  R.  Co.  26  N. 

2  Filer  v.  N.  Y.  Cent.  R.  R.  Co.  49  Y.  48;  see  McKay  v.  Bryson,  5  Ired. 
N.  Y.  42;   Miller  v.  Wilson,  24  Pa.  L.  216. 

St.  114;  Falter  v,  Beale,  1  Salk.  11; 


GENERAT.   PRINCIPLES. 


197 


to  tlie  time  of  the  coimnencement  of  the  action,  or  at  most  up 
to  tlie  time  of  trial.^ 

Future  damages  for  personal  injuries. —  In  ascertaining  the 
amount  of  damages  for  a  personal  injury,  the  jmy  may  consider 
the  bodily  pain  and  mental  suffering  which  have  accrued  and 


» Covert  V.  Gray,  34  How.  Pr.  450. 
In  this  case  Mason,  J.,  said:  "I 
know  there  are  cases  where  the 
action  is  brought  to  recover  for  the 
loss  of  service  resulting  from  assault 
and  battery,  or  personal  injury,  com- 
mitted upon  the  servant,  that  the 
courts  have  allowed  a  recovery  for 
the  full  unexpired  term,  but  they 
were  cases  where  the  proof  showed 
the  injury  was  permanent.  Those 
cases  have  no  appHcation  to  the  case 
at  bar,  for  the  servants  were  actu- 
ally shown  to  be  disabled. 

"  It  may  be  said  that  the  case 
under  consideration  is  not  like  ordi- 
nary cases  of  this  kind,  for  enticing 
away  a  servant,  for  the  reason  that 
the  defendant  caused  or  procured 
the  plaintiffs  son  to  enlist  in  the 
army,  and  he  is  bound  to  military 
service,  and  cannot  act  his  free  voli- 
tion in  regard  to  returning.  This 
argument  is  good  for  what  it  is 
worth.  There  are  very  many  proba- 
ble contingencies  upon  which  he 
may  be  discharged  before  the  end  of 
three  j'ears.  He  may  become  sick, 
and  the  government  discharge  him; 
he  may  be  disabled  by  wounds,  to 
serve  in  the  army,  and  be  dis- 
charged. His  enlistment  was  clearly 
illegal,  being  procured  upon  a  forged 
written  consent  of  his  father.  It 
became,  therefore,  the  duty  of  the 
secretaiy  of  war,  under  act  of  con- 
gi'ess  and  the  articles  of  war,  to  dis- 
charge him,  on  his  father  making 
proof  of  this  fact.  The  plaintiff 
might,  therefore,  procure  his  dis- 
charge. There  is  still  another  an- 
swer.   The  enUstment  was  to  end 


with  the  war,  and  the  law  will  not 
presume  in  such  a  case  that  the  war 
will  continue  three  years.  The  law 
presumes  that  a  fact,  continuous  in 
its  character,  still  continues  to  exist 
vmtil  a  change  is  shown,  as  that  a 
life  still  continues,  or  that  a  part- 
nersliip  proved  to  exist  still  con- 
tinues. 1  Cow.  &  Hill's  Notes,  295. 
And  so  a  state  of  war  proved  to  ex- 
ist three  years  ago  is  presumed  in 
law  to  be  still  existing,  unless  the 
contrary  be  shown,  but  the  law  in- 
dulges no  presumption  at  the  present 
time  that  it  will  continue  three  years 
longer.  On  the  contrary,  war  is  not 
the  normal,  but  the  exceiJtional, 
state  of  society,  and  is  generally  re- 
garded as  a  tiling  not  to  be  desired 
either  by  individuals  or  nations. 
Peace  is  desirable,  and  not  war,  and 
the  presumption  is  that  men  and 
nations  will  do  that  which  is  for 
their  interests,  and  act  with  refer- 
ence to  them.  The  law,  however, 
will  not  indulge  in  any  presumption 
in  regard  to  a  future  condition  of 
war  or  peace.  God  alone  knows 
what  the  future  has  in  store  for  na- 
tions; and  finite  courts,  whose  vis- 
ions cannot  penetrate  the  future, 
should  not  speculate  on  its  proba- 
bilities, much  less  attempt  to  solve 
them  and  make  them  the  basis  of 
their  judgments.  The  rule  is  X'ea- 
sonable  which  presumes  the  continii- 
ance  of  an  existing  fact  at  the  time 
of  the  trial,  for  the  other  party  can 
overthrow  it  by  proof  if  it  be  not 
so;  but  when  it  presumes  a  futui'e 
continuance,  the  party  has  no  ability 
to  unfold  the  future  and  give  an  an- 


198  ENTIRETY   OF   DAMAGES. 

are  likely  to  occiu-  in  the  future  in  consequence  of  the  injury, 
as  well  as  the  loss  of  time,  expense  of  medical  and  other  attend- 
ance, and  the  diminution  of  abihty  to  earn  money.^ 

Only  present  worth  of  future  dajsiages  given. —  In  a  Ver- 
mont case  the  court  say  that  what  the  jury  give  the  injured 
party  for  prospective  damages  is  like  payment  in  advance  ;  and 
in  fixing  the  same,  that  fact  may  be  taken  into  consideration 
and  the  amount  may  properly  be  reduced  to  its  present  worth.^ 

Continuous  breach  of  contracts  or  wrong  not  an  entirety. — 
A  continuous  breach  of  contract  or  wrong  is  not  an  entirety.  It 
is  at  any  time  severable  for  the  purpose  of  redress  in  damages  for 
the  injury  already  suffered.  This  is  the  case  whenever  there  is 
a  continuous  duty  imposed  by  law  or  by  contract,  continuously 
neglected,  whether  such  departure  from  the  hne  of  duty  be  by 
positive  acts  or  by  culpable  inaction.^  There  is  a  legal  obliga- 
tion to  discontinue  a  trespass  or  to  remove  a  nuisance.*  So  a 
covenant  to  keep  certain  premises  in  repair  for  a  specified  period 
imposes  a  continuous  duty,  and  when  neglected  it  is  a  continu- 
ous cause  of  action.^  When  an  action  is  brought,  the  injury  to 
that  time  is  segregated,  and  recovery  is  confined  to  such  damages 
as  result  from  the  breach  or  wrong  continued  to  the  commence- 
ment of  the  action." 

swer  by  his  proof.     The  only  safe  Baker,  57  N.   Y.  662;   New  Jersey 

rule,  in  cases  of  this  kind,  is  to  limit  Exp.  Co.  v,  Nichols,  33  N.  J.  L.  434; 

the  loss  of  service  up  to  the  com-  Walker  v.  Erie  R.  R.  Co.  63  Barb, 

mencement  of  the  suit,  as  was  done  260;    Bradshaw  v.    Lancashire  R'y 

in  Hambleton  v.  Veere,  or,  at  the  Co.  L.  R.  10  C.  P.   189;  CoUins  v. 

furthest,  up  to  the  time  of  the  trial."  Council  Bluffs,   32  Iowa,  324;  Russ 

'  Curtiss  V.  The  Rochester,  etc.  R.  v.  Steamboat  War  Eagle,  14  Iowa, 

R.  Co.  20  Barb.  282;  City  of  Atclii-  363;  Dixon  v.  BeU,  1  Stark.  287. 

son  V.  King,  9  Kans.  5o0;  Welch  v.  "  Fulsome  v.  Concord,  supra. 

Ware,    32    Mich.    77;    Birchard    v.  ^po^y^rs  v.   Ware,    4    Pick.    106; 

Booth,  4  Wis.  67;  Morely  v.  Dunbar,  Pierce  v.  Woodward,  6  Pick.  206. 

24  Wis.    183;  Wilson  v.  Young,  31  ■*  Per  Lord  Denman  in  Clegg  v. 

Wis.   574;    Goodno  v.    Oshkosh,   28  Dearden,  12  Q.  B.  601. 

Wis.  300;  Spicer  V.  Chicago,  etc.  R.  » Cooke    v.    England,   27   Md.    14; 

R.  Co.  29  Wis.  580;  Karasich  v.  Has-  Beach  v.  Crain,  2  N.  Y.  86;  Bleecker 

brouck,  28  Wis.  569;  Penn.  R.  R.  Co.  v.  Smith,  13  Wend.  530;  Phelps  v. 

V.  Dale,  76  Pa.  St.  47;  Tomlinson  v.  New  Haven,  etc.  Co.  43  Conn.  453; 

Derby,   43  Coim.   562;    Fulsome  v.  Keith  v.  Hinkster,  9  Bush,  383. 

Concord,    46    Vt.     135;     Nones     v.  "^  Id. ;  Sackrider  v.  Beers,  10  Johns. 

Northouse,   46   Vt.   587;  Metcalf  v.  241;  Cram  v.  Beach,  2  Barb.  120;  2 


GENEKAL    PELNCirLES. 


199 


The  law  will  not  presume  a  continuance  of  wrong. —  The 
law  will  not  presume  a  continuance  of  the  wrong,  nor  allow  a 
license  to  continue  a  ^vrong,  or  a  transfer  of  title,  to  result  from 
the  recovery  of  damages  for  prospective  misconduct.^ 


N.  Y.  86;  Shaw  v.  Etheridge,  3  Jones' 
L.  301;  Vighte  V.  Hoagland,  20  N.  J. 
L.  249;  Broslield  v.  Lee,  1  Ld.  Raym. 
329;  Whitehouse  v.  Fellows,  10  C.  B. 
N.  S.  765;  Malion  v.  N.  Y.  Cent.  R. 
R.  Co.  24  N.  Y.  658;  Pliillips  v.  Fer- 
ry, 3  Keyes,  313;  Haydeu  v.  Albee, 
20  Minn.  159;  Thompson  v.  Gibson, 
7  M.  &  W.  405;  Beckwith  v.  Gris- 
wold,  29  Barb.  291;  Bradley  v. 
Amis,  2  Hayw.  390;  Canithers  v. 
Dillman,  1  Hayw.  501;  Duncan  v. 
Markley,  Harp.  179;  Moore  v.  Love,  3 
Jones'  L.  215;  Cole  v.  Sprowl,  35  Me. 
161;  Hudson  v.  Nicholson,  5  M.  & 
W.  437. 

'Savannah,  etc.  Canal  v.  Bour- 
quin,  51  Ga.  378;  Hanover  Water  Co. 
V.  Ashland  I.  Co.  84  Pa.  St.  279; 
Whitmore  v.  Bischoff,  5  Hun,  176; 
Sherman  v.  The  Milwaukee,  etc.  R. 
R.  Co.  645;  Russell  v.  Brown,  63  Me. 
203;  Bowyer  v.  Cook,  4  C.  B.  236; 
Holmes  v.  Wilson,  10  A.  &  El.  503; 
Battishill  v.  Reed,  18  C.  B.  696;  Cuni- 
lierland,  etc.  Corp.  v.  Hutchings,  65 
Me.  140. 

In  Moore  v.  Love,  3  N.  C.  215, 
Battle,  J.,  thus  discusses  the  dis- 
tinction between  cases  where  the 
cause  of  action  is  an  entirety,  and 
those  which  admit  of  a  succession 
of  suits.  "It  is  clearly  stated  by 
Lord  Mansfield,  in  the  case  of  Rob- 
inson V.  Bland,  2  Burr,  1077: 
'  When  a  new  action  may  be  brought 
and  satisfaction  obtained  thereupon 
for  any  duties  or  demands  which 
may  have  arisen  since  the  com- 
mencement of  the  depending  suit, 
that  duty  or  demand  shall  not  be 
included  in  the  judgment  upon  the 
former  action.     As  in  covenant  for 


the  non-i)ayment  of  i-ent,  or  of  an 
annuity  payable  at  different  times, 
you  may  bring  a  new  action  toties 
quoties  as  often  as  the  respective 
sums  become  due  and  payable.  So 
in  trespass  and  in  tort,  new  actions 
may  be  brought  as  often  as  new  in- 
juries and  wrongs  are  repeated;  and, 
therefore,  damages  shall  be  assessed 
only  up  to  the  time  of  the  wrong 
complained  of.  But  where  a  man 
brings  an  action  of  assumpsit  for 
Ijrincipal  and  interest  upon  a  con- 
tract obliging  the  defendant  to  pay 
such  principal  money,  with  interest 
from  such  a  time,  he  complains  of 
the  non-payment  of  both;  the  inter- 
est is  an  accessory  to  the  principal, 
and  he  cannot  bring  a  new  action 
for  any  interest  grown  due  between 
the  commencement  of  his  action 
and  the  judgment  in  it.'  What  is 
here  so  well  said  about  the  interest 
being  the  accessory  to  the  principal 
money,  and  therefore  recoverable 
down  to  the  time  of  the  trial,  ap- 
plies with  equal  force  to  the  case  of 
trespass  and  tort,  where  the  wrong 
done  is  not  repeated  or  continued, 
though  the  damage  resulting  from 
it  may  not  cease  being  developed 
until  after  the  time  when  the  writ 
was  issued.  In  the  latter  case  the 
plaintiff  is  not  limited  solely  to  the 
consequential  damage  which  has 
actually  occurred  up  to  the  trial  of 
the  cause,  but  he  may  go  on  to 
claim  relief  for  the  prospective  dam- 
ages which  can  then  be  estimated  as 
reasonably  certain  to  occur.  See  2 
Williams'  Saund.  171,  note  1;  Sedgw. 
on  Dam.  102  et  seq. 

"  This  brings  us  to  tlie  considera- 


200 


ENTIRETr  OF   DAMAGES. 


tion  of  the  case  of  McKay  v.  Bry- 
son,  decided  in  this  court,  and 
reported  in  5  Ired.  R.  216,  which 
may  seem  at  first  view  to  militate 
against  the  distinction  by  which  we 
have  endeavored  to  reconcile  the 
decisions  which  have  been  made 
upon  the  subject  of  prospective 
damages.  It  was  an  action  on  the 
case,  brought  to  recover  damages 
for  enticing  the  plaintiff's  appren- 
tice from  his  service,  and  conveying 
him  out  of  the  state.  The  testi- 
mony showed  that  the  boy  was 
bound  apprentice  to  learn  the  busi- 
ness of  a  tailor,  and  that  he  con- 
tinued in  the  service  of  his  master 
until  he  was  carried  away  by  the 
defendant,  and  when  last  heard 
from  he  was  in  Tennessee.  The  suit 
was  brought  some  time  before  the 
expiration  of  the  term  of  service, 
and  the  jury  were  instructed  that 
they  might  give  damages  as  for  a 
total  loss  of  service  during  the  whole 
period  of  apprenticeship,  subject  to 
a  deduction  on  account  of  the  plaint- 
iff's chance  of  regaining  the  boy. 
The  charge  given  to  the  jury  in  the 
coiu't  below  was  approved  in  this 
court  upon  the  authority  of  the  case 
of  HodsoU  V.  StoUebrass,  11  A.  &  E. 
301.  No  other  case  appears  to  have 
been  cited,  and  the  court  do  not  ad- 
vert to  the  fact  that  in  HodsoU  v. 
StoUebrass  the  injury  from  which 
the  loss  accrued  to  the  plaintiff  was 
a  single  act  of  wrong;  but  they  do 
advert  to  and  state  the  fact  that  the 
loss  caused  by  the  tort  of  the  de- 
fendant was  in  effect  a  total  loss  of 
the  plaintiff's  apprentice.  The  only 
wrong  alleged  in  the  declaration,  or 
proved  on  the  trial,  was  that  of  car- 
rying the  apprentice  beyond  the 
limits  of  the  state,  which  caused  a 
total  loss  of  liis  services  to  his  mas- 
ter. In  this  view  the  case  may  well 
be  sustained  upon  the  principle  ap- 


plicable to  the  second  class  of  cases 
to  which  we  have  referred.  That 
the  removal  of  the  apprentice  out  of 
the  state  may  be  regarded  in  the 
same  light  as  if  a  permanent  injury 
had  been  inflicted  upon  him.  We 
have  the  strong  analogy  of  the  case 
of  trover  by  one  tenant  in  common 
against  another  for  the  destruction 
of  the  article  held  in  common.  If 
the  article  be  sent  off  by  the  defend- 
ant to  a  place  unknown  to  the 
plaintiff,  so  that,  as  to  him,  it  is  to- 
tally lost,  it  is  equivalent  to  its  de- 
stniction.  Lucas  v.  Wasson,  3  Dev. 
R.  398.  The  circumstances  of  the 
present  case  are  very  different  from 
those  in  McKay  v.  Bryson.  The  ap- 
prentices were  carried  by  the  de- 
fendant to  his  residence  in  an 
adjoining  county,  only  twenty-five 
miles  distant  from  the  plaintiff. 
They  were  not  concealed  from  him; 
and  it  appears  from  the  proof  that 
he  knew  where  they  were.  The 
continued  detention  of  them  by  the 
defendant  was  a  succession  of  torts, 
for  which  he  might  bring  new  ac- 
tions from  time  to  time;  and  hence 
his  case  falls  into  the  class  with 
Hambleton  v.  Veere,  and  all  those 
on  which  damages  can  be  given  for 
the  loss  of  service  up  to  the  com- 
mencement of  the  suit  only." 

The  tnie  distinction  is  undoubt- 
edly pointed  out  in  the  foregoing 
opinion,  that  the  damages  in  an  ac- 
tion cannot  include  those  arising 
after  suit  is  brought,  if  a  new  action 
covild  be  brought  for  them;  but  it 
may  admit  of  a  doubt,  if  the  case 
was  properly  disposed  of  upon  that 
test.  A  trespasser  who  takes  per- 
sonal property,  and  retains  it,  may 
be  said  to  commit  a  succession  of 
torts  while  he  retains  the  property; 
but  in  an  action  for  such  a  taking, 
the  injured  party  would  rmdoubt- 
edly  be    obliged  to  make  his   full 


GENEEAL   PKINCIPLES. 


201 


claim  of  damages.  He  ■would  not 
be  entitled  to  a  succession  of  ac- 
tions. 

In  cases  where  apprentices  have 
been  enticed  away,  and  the  enticer 
has  not,  by  the  injury  or  otherwise, 
made  it  reasonably  certain  that  the 
aijprentice  will  not  retui-n,  pros- 
pective damages  are  not  denied  be- 
cause a  new  action  may  be  brought 
for  them,  but  because  they  are 
not  suscei^tible  of  proof;  they  are 
not  certain.  But  if  the  defend- 
ant has  control,  and  will  have  it  in 
the  future,  he  may  be  charged  with 
depriving  the  master  of  the  ser\'ices 
of  an  aj)prentice  for  the  whole  term, 
for  the  same  reason  that  he  might 
be  charged  with  the  full  value  of  a 
horse  tortiously  taken.  See  Herreter 
V.  Hehn,  23  Cal.  385. 

The  case  of  Clegg  v.  Dearden, 
13  Q.  B.  576,  is  interesting  upon  the 
same  distinction.  There  the  owner 
of  a  coal  mine  excavated  as  far  as 
the  boundary  (which  he  was  by  cus- 
tom entitled  to  do),  and  continued 
the  excavation  wrongfully  into  the 
neighboring  mine,  leaving  an  aper- 
tiu-e  in  the  coal  of  that  mine, 
through  which  water  passed  into  it 
and  did  damage.  It  was  held  that 
the  party  so  excavating  was  liable 
in  trespass  for  breaking  into  the 
neighboring  mine,  but  not  in  an  ac- 
tion on  the  case  for  omitting  to  close 
up  the  aperture  on  his  neighbor's 
soil,  though  a  continuing  damage 
resulted  from  its  being  unclosed.  It 
was  also  held  that  a  new  action 
could  not  be  maintained  for  dam- 
ages occasioned  by  the  flow  of  ■water 
in  consequence  of  the  aperture  re- 
maining unclosed,  after  an  action 
on  the  case  had  already  been 
brought  for  making  the  aperture 
and  letting  in  the  water,  which  ac- 
tion was  referred  to  arbitration,  and 
the  plaint  itf  being  made  a  party  to 


the  reference  in  respect  of  any  in- 
jury to  him  by  any  of  the  matters 
alleged  in  the  declaration  in  such 
action,  had  had  damages  awarded 
and  paid  for  such  injuiy,  although 
the  damage  last  complained  of  is 
subsequent  to  the  award  and  i)ay- 
nient.  Lord  Denman,  C.  J.,  said: 
"The  gist  of  the  action  as  stated  in 
the  declaration  is  the  keeping  open 
and  unfilled  of  an  aperture  and  ex- 
cavation made  by  the  defendant 
into  the  plaintiffs  mine.  By  the 
custom  the  defendant  was  entitled 
to  excavate  up  to  the  boundaiy  of 
his  mine,  without  leaving  any  bar- 
rier; and  the  cause  of  action,  there- 
fore, is  the  not  filling  up  the  excava- 
tion made  by  him  on  the  plaintiff's 
side  of  the  boundaiy  and  within 
his  mine.  It  is  not,  as  in  the  case 
of  Holmes  v.  Wilson,  10  A.  &  E. 
503,  a  continuing  of  something 
wrongfully  placed  by  the  defendant 
upon  the  premises  of  the  plaintiff; 
nor  is  it  a  continuing  of  something 
placed  upon  the  land  of  a  third  per- 
son, to  the  nuisance  of  the  plaintiff, 
as  in  the  case  of  Tliompson  v.  Gib- 
son, 7  M.  &  W.  456.  There  is  a  legal 
obligation  to  discontinue  a  trespass, 
or  remove  a  nuisance;  but  no  such 
obligation  upon  a  trespasser  to  re- 
place what  he  has  pulled  down  or 
destroyed  vipon  the  land  of  another, 
though  he  is  hable  in  an  action  of 
trespass  to  compensate  in  damages 
for  the  loss  sustained.  The  defend- 
ant having  made  an  excavation  and 
aperture  in  the  plaintiff's  land,  was 
hable  to  an  action  of  trespass;  but 
no  cause  of  action  arises  from  his 
omitting  to  re-enter  the  plaintiff's 
land,  and  fill  up  the  excavation; 
such  an  omission  is  neither  a  con- 
tinuation of  a  trespass  nor  of  a 
nuisance;  nor  is  it  the  breach  of 
any  legal  duty."  Cumberland,  etc. 
Corp.  V.  Hitchings,  65  Me.  140. 


202  ENTIRETY   OF   DAMAGES. 

N'msANCE  BY  FLOODING  LAND. —  In  an  action  for  damages  oc- 
casioned by  the  nuisance  of  flooding  land,  it  was  held  that  the 
injury  by  killing  timber  caused  before  suit  might  be  recovered 
for,  thou  oh  the  timber  did  not  die  until  after  the  commence- 
ment  of  the  action.^ 

The  damages  from  a  continuing  cause  are,  however,  generally 
recoverable  only  down  to  the  time  of  commencing  the  action, 
and  all  such  damages  are  entire." 

Necessity  of  successive  actions. —  The  necessity  and  advan- 
tage of  successive  actions  to  recover  damages  which  proceed 
from  a  continuous  and  still  operating  cause  are  very  obvious ; 
for  besides  the  considerations,  which  have  already  been  men- 
tioned, the  injurious  effects  so  blend  together  that  in  most 
instances  it  would  be  wholly  impractica^ble  to  accurately  appor- 
tion them.  Therefore  the  right  to  recover  for  all  damages 
which  have  been  suffered  to  the  time  of  bringing  the  first  action, 
in  the  next,  all  damages  which  have  been  suffered  from  that 
time  to  that  of  commencing  such  second  action,  and  so  on  while 
the  cause  continues,  is  the  most  convenient  course  of  practice  for 
practical  redress  that  can  be  de\^sed. 

In  cases  of  contracts  imposing  a  continuous  duty,  or  impos- 
ing a  duty  the  continued  neglect  of  which  is  a  continuous  breach, 
from  which  results  a  steady  accretion  of  damage,  the  injured 
party  may  bring  a  succession  of  actions,  or  treat  defaults  having 
that  significance,  as  a  total  breach;^  and  recover  damages  ac- 
cordingly. Of  this  nature  was  the  contract  in  Grain  v.  Beach,* 
where  the  plaintiff  had  granted  to  the  defendant  a  perpetual 
right  of  way  over  liis  land,  and  covenanted  to  erect  a  gate  of  a 
specified  description  at  the  terminus,  to  which  the  defendants 
covenanted  in  the  same  instrument  to  make  aU  necessary  re- 

iHayden  v.  Albee,  20  Minn.  159;  ^Q^-an^j  Eapids,  etc.  R.  R.  Co.  v. 

Clark  V.  The  Nevada  L.  &  M.  Co.  6  Van  Dusen,  29  Mich.  431;  Royalton 

Nev.   203;    see    Crabtree  v.  Hagen-  v.  R.  &  W.  Turnpike  Co.  14  Vt.  311; 

baugh,  25  111.  214.  Withers  v.  Reynolds,  2  B.  &  Ad.  882; 

2  Blunt  V.    McCormick,   8  Denio,  Fish  v.  Foley,  6  Hill,  54,  commented 

283;  Cumberland,  etc.  Corp.  v.  Hitch-  on  and  explained  in  Crain  v.  Beach, 

ings,  65  Me.    140;  Thayer  v.  Brooks,  2  Barb.  124. 

17  Ohio,  489;  Loweth  v.  Smith,  12  M.  *  2  N.  Y.  86;  2  Barb.  120 
&  W.  582;  Crain  v.  Beach,  2  N.  Y.  86. 


PAHTJES   TO   SUE   A]S^D   BE   SUED.  203 

pairs.  The  plaintiff  erected  the  gate,  and  it  was  subsequently 
removed  by  some  unlmown  person.  It  was  held  that  the  de- 
fendants were  bound  to  replace  it ;  that  the  covenant  was  con- 
tinuing ;  that  an  action  brought  thereon,  after  the  removal  of 
the  gate,  for  dauiages  occasioned  by  cattle  coming  on  the  plaint- 
iff's land  in  consequence  of  there  being  no  gate,  arid  a  recovery 
therein,  were  no  bar  to  another  action  on  the  same  covenant  for 
damages  accruing  after  the  commencement  of  the  first  suit. 
The  defendants'  default  was  not  a  total  breach,  nor  declared  and 
recovered  on  as  such,  and  hence  they  were  not  thereby  relieved 
of  the  continuing  obhgation  of  the  covenant.  If  it  were  an  entire 
contract,  hoAvever,  any  breach  would  be  or  might  be  treated 
as  a  total  breach.^  Covenants  for  support  and  maintenance 
during  life  are  entire  contracts,  and  any  breach  entitles  the  in- 
jured party  to  recover  entire  damages  as  for  a  total  breach,^  but 
as  they  impose  a  continuous  dutj,  the  injured  party  may  have  a 
succession  of  actions  treating  any  acts  of  breach  as  partial  only.^ 

Section  2. 

PARTIErs  TO    PUE    AND  BE     SUED. 

Damages  to  joint  parties  injured,  entire  —  Must  he  recovered  hy  person  in 
whom  legal  interest  vested  —  Not  joint  when  contract  apportions  the 
legal  interest — Implied  assumpsit  follows  consideration  —  Effect  of 
release  by  or  death  of  one  of  several  entitled  to  entire  damages  on  con- 
tract—  Misjoinder  of  plaintiffs,  when  fatal  objection  —  Joinder  of  de- 
fendants ;  effect  of  nonjoinder  and  misjoinder  —  How  joint  liability 
extinguished  or  severed  —  Principles  on  which  joint  right  or  liability 
in  actions  of  tort  determined  —  A  tortious  act  not  an  entirety  as  to 
parties  injured  —  General  and  special  owners  —  Joint  and  several  lia- 
bility for  torts. 

Damages  to  joint  parties  injuked,  entire. —  Before  leaving 
the  subject  of  the  entirety  of  causes  of  action  and  damages,  it  is 
proper  to  notice  some  points  relative  to  parties.  At  common 
law,  all  the  parties  who  are  jointly  injured  by  a  tort  or  breach 
of  contract  should  sue  jointly  for  damages ;  and  in  actions  ex 

'  Fish  V.  Foley,  6  Hill,  54.  sjd.;  Fiske  v.  Fiske,  20  Pick.  499; 

=  Schell  V.  Plumb,  55  N.  Y.  593;      Berry  v.  Harris,  43  N.  H.  376;  Fer- 

Dresser  v.    Dresser,    35    Barb.  573;     guson  v.    Ferguson,   2    N.   Y.    360; 

Shaffer  v.  Lee,  8  Barb.  412.  Tui-ner  v.  Hadclen,  62  Barb.  480. 


204  ENTEBETY   OF   DAMAGES. 

contractu  the  rule  is  imperative.  All  the  parties  must  join 
as  plaintiflfs  with  whom  the  violated  contract  was  made,  unless 
their  interests  are  severed  in  the  contract,  so  that  upon  a  breach 
a  distinct  cause  of  action  accrues  to  each  or  less  than  all.^ 

Must  be  eecovered  by  person  in  whom  legal  interest 
VESTED. —  The  suit  must  be  brought  in  the  name  of  the  party  in 
whom  is  vested  the  legal  interest,  though  the  equitable  interest 
be  in  another  person.^  The  funds  of  a  voluntary  association 
were  put  under  the  control  and  management  of  trustees  who 
took  a  note  payable  to  themselves  on  lending  the  funds  to  some 
other  members.  It  was  held  that  the  trustees  in  their  individ- 
ual names  were  entitled  to  maintain  an  action  on  the  note,  as  it 
was  payable  to  them,  though  the  defendants  as  well  as  them- 
selves were  members  of  the  association  beneficially  interested  in 
the  collection.''  Under  this  rule,  in  an  action  by  a  firm,  the 
name  ox  a  dormant  partner  need  not  and  ought  not  to  be  used,^ 
unless  he  is  one  of  the  parties  chsolosed  in  the  contract.^  The 
parties  to  a  contract  are  the  persons  in  whom  the  legal  interest 
in  the  subject  of  it  is  deemed  to  be  vested,  and  who  therefore 
must  be  the  parties  to  the  action  which  is  instituted  for  the  pur- 
pose of  enforcing  it,  or  recovering  damages  for  its  violation.® 

'Hall  V.  Lei^h,  8  Cranch,  50;  Fu-  ton,  17   Md.  403;  Sunapee  v.  East- 

gure  V.  Mut.  So.  of  St.  Joseph,  46  man,  33  N.  H.  470;  Pike  v.  Pike,  24 

Vt.  362;  Cleaves  V.  Lord,  3  Gray?  66;  N.  H.  384;  Phillips  v.  Penny  wit,  1 

Jewett  V.  Cunard,  3  Woodb.  &  M.  Ark.   59;    Lapham  v.   Green,  9  Vt. 

277;  Little  V.  Hobbs,  8  Jones' L.  179;  244;    Governor   v.  Ball,  1    Hempst. 

Gridley  V.Starr,  1  Root,  281;  Farmer  549;  Lord  v.  Carnes,  98  Mass.   308; 

V.  Stewart,  2  N.  H.  97;  Eastman  v.  Hart  v.  Stone,  30  Conn.  94;  Pierce 

Ramsey,  3  Ind.  419;  Millard  v.  Bald-  v.  Robie,  39  Me.  205;  Yeager  v.  Wal- 

win,  3  Gray,  484;    Dow  v.  Clark,  7  lace,  44  Pa.  St.  94;  Morton  v.  Webb, 

Gray,  198;  Weather  v.  Ray,  4  Dana,  7  Vt.   133;    Boardman  v.  Keeler,  2 

474;  Frankern  v.  Trimble,  5  Pa.  St.  Vt.  65;  Clarkson  v.  Carter,  8  Conn. 

520;   Ross  v.  Milne,  12    Leigh,  204;  84; '  Mitchell  v.  Dall,  3  H.  &   Gill, 

Thompson  v.  Page,  1  Met.  566;  The  159;    Lord  v.  Baldwin,  6  Pick.  352; 

Ship  Potomac,  2  Black,  581;  Archer  Wilson  v.    Wallace,  8  S.   &  R.   55; 

V.   Bogue,  3  Scam.  536  (4  111.);  Rob-  Warner  v.  Griswold,  8  Wend.  666: 

ertson  v.  Reed,  47  Pa.  St.  115;  Saw-  Clark  v.  Miller,  4  Wend.  638. 
yer  v.  Steele,  4  Wash.  227;  Newcomb         ■'  Pierce  v.  Robie,  39  Me.  205. 
V.  Clark,  1  Denio,  320;  Low  v.  Cross,         *  Clark  v.  Miller,  4  Wend.  628. 
1  Black  533.  ^  Clark  v.  Carter,  2  Cow.  84;  Lord 

2 1  Chitty  PI.  2-6;  Treat  v.  Stan-  v.  Baldwin,  6  Pick.  352. 
ton,  14  Conn.  445;   Denton  v.  Den-         *  Treat  v.  Stanton,  14  Conn.  445. 


parties  to  sue  and  be  sued.  205 

Not  jotxt  when  contract  apportions  the  legal  interest. — 
"Where  the  contract  separates  and  apportions  the  legal  interests, 
the  injury  in  case  of  a  breach  is  correspondingly  separate  and 
distinct.  Thus  a  promise  to  pay  the  respective  owners  of  land 
taken  for  a  road  such  sums  as  a  referee  named  shall  award, 
gives  each  a  separate  action  for  the  amount  awarded  him.' 

lilPLIED    ASSUJVIPSIT    FOLLOWS    THE    CONSIDERATION. Where   the 

assumpsit  is  imphed,  it  will  follow  the  consideration.^  A  com- 
mittee appointed  by  a  school  district  to  repair  a  school  house 
took  the  job  among  themselves ;  each  performing  work,  and  fur- 
nishing a  separate  portion  of  materials.  It  was  held  that  each 
had  a  separate  cause  of  action.^  By  the  failure  of  I  to  fulfil  a 
promise  made  to  Gi-  and  S  to  enter  satisfaction  of  a  judgment 
against  them,  the  judgment  was  collected  entirely  out  of  the 
property  of  G;  and  it  was  held  that  he  could  recover  in  an 
action  by  himself  alone  for  money  paid.*  If  money  is  deposited 
with  a  stakeholder  on  the  event  of  a  wager,  by  one  who  acts 
as  an  agent  for  several  others,  each  of  the  latter  may  bring  a 
separate  action  to  recover  back  the  money  deposited  for  him, 
though  the  stakeholder  was  ignorant  of  the  principals  on  whose 
account  the  deposit  was  made.^  Several  plaintiffs  claiming  dis- 
tinct rights  cannot  join  in  the  same  action.* 

Effect  of  release  by  or  death  of  one  or  several  entitled 
TO  ENTIRE  DAMAGES. —  Where  a  cause  of  action,  ea?  contractu^ 
accrues  to  several  jointly,  it  is  an  entu-ety  as  to  tliem ;  they 
must  aU  join  in  an  action  upon  it ;  no  others  can  ;  except  where 
assignments  are  sanctioned  by  statute  as  a  transfer  of  the  legal 
right  of  action,  or  unless  that  legal  right  devolves  upon  others 
by  operation  of  law,  as  in  cases  of  death  or  marriage.  It  can- 
not be  severed  by  partial  assignments ;  '^  nor  by  the  giving 
of  a  release  by  one  of  several  jointly  entitled  to  sue.     Such  a 

^  Farmer  v.  Stewart,  2  N.  H.  97;  ^Bariy    v.    Rogers,   3   Bibb.    314; 

Jewett  V.  Cunard,  3  Woodb.  &  M.  Hinchman  v.  Patterson    R.  R.  Co. 

377.  17  N.  J.  Eq.  75;  Chambers  v.  Himt, 

»Lee  V.  Gibbons,  14  S.  &  R.  110.  18  N.  J.  L.  339. 

s  Geer  v.  School  District,  6  Vt.  76.  '^  Cliicago,  etc.  R.  R.  Co.  v.  Nich- 

*  Taylor  v.  Gould,  57  Pa.  St.  153.  ols,  57  lU.  464. 

5  Yates  V.  Foot,  12  John.  1. 


206  ENTIEETT   OF   DAMAGES. 

release  would  operate  to  extinguish  the  right  of  action  at  law  : 
for  if,  for  such  a  reason,  all  to  whom  the  right  of  action  accrued 
cannot  join  in  a  suit  upon  it,  no  action  at  all  can  be  main- 
tained.^ But  one  of  several  joint  creditors,  between  whom  no 
partnership  exists,  cannot  release  the  common  debtor  so  as  wholly 
to  conclude  his  co-creditors  who  do  not  assent  to  such  release.  He 
may  defeat  any  action  at  law ;  but  they  will  be  entitled  to  as- 
sert their  rights  in  equity.  It  is  a  general  rule  that  joint  cred- 
itors cannot  by  a  di\^sion  of  their  claim  between  themselves 
acquire  a  separate  right  of  action  against  theh  debtor,  either  at 
law  or  in  equity ;  but  when  a  debtor  procures  a  release  from  a 
part  of  them,  he  cannot  object  to  the  others  proceeding  against 
him  in  equity.^  On  the  death  of  one  of  two  persons  who  have 
a  joint  right  of  action  upon  contract,  it  survives ;  and  the  sur- 
vivor alone  is  entitled  to  sue.  The  personal  representatives  of 
the  deceased  party  cannot  be  joined  with  him.^ 

By  consent  a  joint  demand  may  be  severed  so  that  several 
suits  may  be  brought.*  So  an  assignee  of  the  whole  or  a  part 
may  sue  in  his  own  name  if  the  debtor  promise  to  pay  him,^  but 
not  otherwise.^ 

Misjoinder  of  plaintiffs,  when  a  fatal  objection. —  In  such 
action  it  is  a  fatal  objection  available  on  the  trial  that  there  is  a 
misjoinder  of  plaintiffs.''  It  is  equally  so  in  actions  ex  delicto." 
And  in  actions  ex  contractu,  the  nonjoinder  of  all  the  parties  in 
whom  the  joint  right  of  action  is  vested,  is  fatal,  and  the  objec- 


'  Hall  V.  Gray,  54  Me.  230:  Kim-  v.  Parish,  1  Bibb,  547;  Chandler  v. 

ball  V.  Wilsou,  3  N.  H.  96;  Myrick  Hill,  2  Hen.  &  Mun.  124. 

V.  Dame,  9  Cush.  248;  Tuckerman  V.  •'Parker    v.    Bryant,   40    Vt.  691; 

NewhaU,  17  Mass.  581;  Eaton  v.  Lin-  Carrington  v.  Crocker,  37  N.  Y.  336. 

coin,  13  Mass.  424;  see  Eisenhart  v.  "Page  v.  Danforth,  53  Me.  174. 

Slaymaker,  14  S.  &  R.  154.  «  Hay  v.  Green,  12  Cush.  282. 

-Upjohn  V.    Ewing,   2   Ohio,    13;  'Brent  v.  Tevebaugh,  12  B.  Men. 

Hosack  V.  Rogers,  8  Paige,  229;  Car-  87;  Blakely  v.  Blakely,  2  Dana,  460; 

rington  v.  Crocker,  37  N.  Y.  336.  Doremus  v.   Seklen,  19   John.   213: 

^Jackson  v.  People,  6  Mich.  155;  Waldsmith  v.  Waldsmith,  2    Ohio, 

Smith    V.    Franklin,    1    Mass.    480;  833;  Robinson  v.  Scull,  3  N.  J.  L. 

Walker    v.    Maxwell,    1  Mass.    113;  817. 

Morrison    v.    Winn,    Hardin,    480;  ^  Glover  v.  Hannewell,  6  Pick.  222; 

Beebe  v.  Miller,  fMinor  (Ala.),  364;  Aiusworth  v.  Allen,  Kirby,  145. 
Brown  v.  King,  1  Bibb,  462;  Clark 


PARTIES   TO   SUE   AXD   BE   SUED.  207 

tion  may  be  taken  on  the  trial.^  But  in  actions  of  tort,  the  non- 
joinder of  a  party  who  ought  to  join  as  co-plaintiff  can  only  be 
taken  advantage  of  by  plea  in  abatement,  or  upon  the  trial  by 
an  apportionment  of  damages.- 

JoiXDER     OF     DEFENDANTS  ;      EFFECT      OF     NONJOINDER     AND     AOS- 

joiNDER, —  By  the  common  law,  all  joint  promisors  shomd  be 
joined  as  defend:ints.  And  all  should  be  sued,  or  only  one,  on  a 
joint  and  several  contract.^  On  a  joint  and  several  promissory 
note,  made  by  a  firm  in  the  firm  name,  and  by  another  per- 
son in  his  individual  character,  a  suit  may  be  maintained  against 
the  members  of  the  firm  ^\^thout  joining  the  other  maker,  they 
for  this  purpose  being  considered  but  one  person ;  and  the  non- 
joinder of  the  other  pereon  is  no  ground  of  objection."*  "Where 
some  weeks  after  the  execution  of  a  lease  of  real  estate,  a  third 
person,  by  writing  obligatory,  became  suret}"  for  the  lessee,  it 
was  held  that  the  lessee  and  surety  were  not  jointly  liable,  and 
could  not  be  joined  as  defendants.^  Two  or  more  persons  can- 
not be  sued  jointly,  unless  a  joint  hability  is  proved.*  On  the 
death  of  one  joint  promisor,  the  hability  survives  at  law  against 
the  remaining  or  surviving  promisor ;  and  the  personal  repre- 
sentative of  the  deceased  promisor  cannot  be  joined  as  co- 
defendant.' 

Many  persons  may  join  in  one  irstrument  without  making 
themselves  jointly  bomid.     Whether  they  have  done  so  or  not 

-  Dob  T.  Halsey,  16  John,  34:  Elile  289;  Merrick  v.  Tnistees,  8  Gill,  59; 

V.  Purdy,  6  Weucl.  629;  Hansel  v.  Minor  v.  Mechanics'  Bank,  1  Pet.  73; 

Morris,  1  Blackf.  307;  Mcintosh  v.  Bangor  Bank  v.  Treat,    6  Greenlf. 

Long,   2  N,   J.    L.  274;    Hilliker  v.  207;  Fieldon  v.  Lohens,  9  Bosw.  438; 

Loop,  5  Vt.  116;  Ellis  v.  McLemoor,  Claremont  Bank  v.  Woods,  12  Vt. 

1   Bailey,    13;    Coffee    v.   Eastland,  252;  Keller  v.  Blasdel,  1  Xev.  491. 

Cooke,  159;  Sweigert  v.  Berk,  8  S.  •'Van  Tine  v.  Crane,  1  Wend.  524. 

,  &  R.  308;  Morse  v.  Chase,  4  Watts,  ^Tourtelott  v.  Jenkins,  4  Blackf. 

456;  Connolly  V.  Cottle,  Breese  (HI.),  483. 

364;  Beach  v.  Hotchkiss,  2  Conn.  697;  ^  Rowan  v.  Rowan,  29  Pa.  St.  181. 

Baker  v.  JeweU,  0  Mass.  460;  Halli-  •>  Sigler  v.  Interest,  3  N.  J.  L.  724: 

day  V.  Daggett,  6  Pick.  359;  Gordon  Hedden  v.  Van  Ness,  2  N.  J.  L.  84: 

V.  Goodwin,  2  Nott  &  McCord,  76.  Gillin  v.  Pence,  4  T.  B.  Mon.  304: 

-Wright  V.  Bennett,  3  Barb.  451;  Murphy  v.  Branch  Bank,  5  Ala.  421: 

^Vhitev.  Webb,  15  Conn.  202.  Pool  v.  McLeod,  1   Sm.  &  M.  391: 

^Deloach  v.  Dixon,  1  Hempst.428;  Union  Bank  v.  Mott,  27  N.  Y.  633; 

Register  v.  Casperson,  3  Harr.  (Del.)  Voorhis  v.  Chiids,  Ex'r,  17  N.  Y.  354 


208  ENTIRETY   OF  DAMAGES. 

is  a  question  of  intention,  to  be  determined  by  construction  of 
tlie  entire  contract.  The  undertaking  of  each  party  may  be 
several,  as  is  usual  in  subscriptions  for  some  common  purpose  ; 
and  sometimes  in  other  promises  to  pay.^ 

Joining  too  many  persons  as  defendants  in  an  action  upon 
contract  is  a  fatal  objection,  and  may  be  taken  advantage  of  on 
the  trial  ;^  but  if  less  than  all  the  persons  jointly  liable  aio  sued, 
the  objection  of  the  nonjoinder  of  others  can  only  be  taken  ad- 
vantage of  by  plea  m  abatement,  unless  it  appears  on  the  face 
of  the  declaration.^ 

How     JOmX     LIABILITY     EXTINGUISHED     OK     SEVERED. If     OUO 

jointly  hable,  or  one  jointly  and  severally  Hable,  is  released,  all 
are  discharged.*  So  a  specialty  taken  from  one  merges  any 
simple  contract  liabihty,  not  only  of  the  person  giving  the  spe- 
cialty, but  of  others  who  were  jointly  liable  with  him.^  Thus 
where  a  mercantile  business  was  carried  on  in  a  single  name, 
and  the  merchant  in  whose  name  the  business  was  conducted 
bought  goods,  and  executed  a  specialty  for  the  price,  the  ven- 
dor, though  ignorant  at  the  time  that  such  purchaser  had  a  dor- 
mant partner,  and  discovered  that  f a,ct  after  the  death  of  the 
purchaser  who  executed  the  specialty,  was  held  not  entitled  to 
maintain  assumpsit  on  the  simple  contract  against  the  dormant 
partner,  because  that  contract  was  extinguished.^  The  code  has 
materially  relaxed  the  strictness  of  the  common  law  as  to  par- 
ties, by  requiring,  with  few  exceptions,  the  action  to  be  brought 
in  the  name  of  the  real  party  in  interest. 

Principles  on  which  joint  right  or  liability  in  actions  of 
TORT  DETERMINED. —  "Whether  actions  in  tort  are  joint  as  to  the 

'Larkin   v,  Butterfield,  29  Mich.  449;   Means  v.  MUliken,  33  Pa.  St. 

354.  517;  Douglas  v.  Chapin,  26  Conn.  76. 

2Tuttle  V.  Cooper,   10  Pick.   281;  ^gt^te    v.    Watson,   44  Mo.    305; 

Wolcott    V.  Canfield,  3    Conn.  194;  Heckman  v.  Manning,  4  Col.  543; 

Livingston  v.  Tremmer,    11    John.  Gunther  v.  Lee,  45  Md.  60;  Line  v. 

101;  Erwin  v.  Devine,  2  T.  B.  Mon.  Nelson,  38  N.  J.  L.  358;  Bonney  v. 

124;  Jenkins  v.  Hart,  2  Rand.  446.  Bonney,    29    Iowa,   448;    Prince   v. 

3  Bragg  V.  Witzell,  5  Blackf.   95;  Lynch,  88  Cal.  528;  Neligh  v.  Brad- 
Burgess  V.  Abbott,  6  Hill,  135;  Nash  ford,  1  Nev.  451. 
V.  Skinner,  12  Vt.  219;  Ives  v.  Hulet,  ^  Ward  v.  MoUer,  2  Eob,  (Va.)  536. 
12  Vt.  314;  Hicks  v.  Cram,  17  Vt.  ^Id. 


PAiiTIES    TO    SUE   AND    BE    SUED.  209 

jDarties  injured,  or  joint  as  to  parties  liable,  depends  on  very- 
plain  principles.  The  injury  is  joint  where  it  at  once  affects 
property  or  interests  jointly  owned;  in  other  words,  there  must 
be  a  community  of  interest  between  the  parties  injured  in  that 
which  the  injury  affects.  And  to  render  wrongdoers  jointly  ha- 
ble  there  must  be  concert  between  them  or  a  common  purpose. 
Persons  who  are  jointly  interested  in  the  damages  recover- 
able for  an  injury  to  property,  may  join  in  a  suit  for  their  recov- 
ery, although  they  are  not  joint  owners  of  the  property  itself. 
Thus  two  persons  in  possession  of  land  carrying  on  business  in 
a  mUl  which  belongs  to  one  of  them  only,  may  unite  in  an  ac- 
tion for  damages  for  a  negligent  burning  of  it.^  All  joint  own- 
ers of  personal  property  are  rightly  joined  in  actions  for  tortious 
injuries  thereto.^ 

Tortious  act  not  an  entirety  as  to  parties  injured. —  A 
tortious  act  is  not  an  entirety  as  to  the  persons  affected  by  it ;  it 
may  affect  many  persons  and  do  a  several  injmy  to  each.  A 
single  trespass  upon  real  estate  injurious  to  the  possession  and  to 
the  inheritance,  wiU  be  an  entire  cause  of  action,  if  one  person 
has  the  entire  title  and  is  in  possession.  But  if  one  person  has 
the  possession,  and  another  a  reversionary  title,  a  separate  wrong 
is  done  to  each,  for  which  he  may  bring  a  separate  and  inde- 
pendent action.^  One  having  a  special  interest  in  real  estate 
injured  by  the  tortious  act  of  another  may  recover  damages 
therefor,  Avhether  the  wrongdoer  is  a  stranger  or  has  another  in- 
terest in  the  same  premises.  The  purchaser  of  a  crop  of  grow- 
ing grass  is  entitled  to  the  exclusive  enjoyment  of  the  crop 
standing  on  the  land,  during  the  proper  period  of  its  fuU  growth 
and  removal,  and  he  may  maintain  trespass  qimre  clausum, 
f  regit  against  a  stranger  who  daring  that  time  Avrongfully  enters 
and  cuts  and  carries  away  the  grass.*     He  could  maintain  a 

'  Cleavelaud  v.  Grand  T.  R.  Co.  42  v.  Adams,  1  Thomp.  &  C.  587;  Stoner 

Vt.  449;  Rhoads  v.  Booth,  14  Iowa,  v.  Hensiker,  47  Pa.  St.  514;  Adams 

575.  V.  Emerson,  6  Pick.  57;  Robbins  v. 

'Glover  v.    Austin,   6  Pick.    209;  Bomian,  1  Pick.  122. 
Peckering  v.  Peckering,  11  N.  H.  141.         ■*  Dolloff  v.  Danforth,  43  N.  H.  219; 

^  Wood  v.Williamsburgh,  46  Barb.  Howard    v.    Lincoln,     13    Me.    122; 

601;  Gilbert  v.  Kennedj-,  22  Mich.  5;  Austin  v.  Hudson  R.  R.  Co.  25  N.  Y. 

Files  V.  Magoon,  41  Me.  104;  Stevens  334. 

Vol.  I— 14  .    .. 


210  ENTIRETY    OF   DAMAGES. 

like  action  against  the  general  owner  of  the  land  for  such  a 
trespass.^ 

General  and  special  owners. —  In  such  case,  the  damages 
will  be  such  as  are  appropriate  to  the  tenure  by  which  the 
plaintiff  holds,  and  such  as  result  from  the  injury  he  has  suffered. 
He  must  show  that  his  title  gives  him  an  interest  in  the  dam- 
ages he  claims ;  and  he  can  recover  none  except  such  as  affect 
his  right.^ 

In  actions  for  torts  in  the  taldng  or  conversion  of  personal 
property  against  a  stranger,  a  bailee,  mortgagee  or  other  special 
property  man  is  entitled  to  recover  the  full  value ;  and  must 
account  to  the  general  owner  for  the  surplus  recovered  beyond 
the  value  of  his  own  interest ;  but  against  the  general  owner,  or 
one  in  privity  with  him,  only  the  value  of  the  special  property.* 
Where  goods  assigned  to  a  creditor  in  trust  to  pay  himself  and 
other  creditors,  were  attached  at  the  suit  of  some  of  the  credit- 
ors, as  the  property  of  the  assignor,  before  the  assignment  was 
assented  to  by  any  creditor  beside  the  assignee,  and  the  value 
of  the  goods  exceeded  the  amount  of  the  assignee's  demand,  it 
was  held,  in  an  action  of  trespass  brought  by  the  assignee 
against  the  attaching  officer,  that  the  measure  of  damages  was 
the  amount  of  the  plaintiff's  demand  against  the  assignor,  and 
not  the  value  of  the  goods.*  An  officer,  with  an  execution 
against  one  of  two  partners,  Avho  makes  himself  a  trespasser, 
ab  initio,  by  levying  on  the  entire  property  of  the  concern,  still 
represents  the  interest  of  the  execution  debtor,  and  the  owner 
of  the  other  interest  can  recover  against  him  only  the  value  of 
one  half  interest.^ 

Several  persons  having  separate  and  distinct  interests  in  a  chat- 
tel, cannot  unite  in  replevin  for  it ; "  two  persons  cannot  join  in 

'Clapv.  Draper,  4  Mass.  266;  Cald-  Bartlett  v.    Kidder,    14  Gray,  449; 

well  V.  Julian,  2  Mills'  Const.  (S.  C.)  Russell  v.  Butterfield,  21  Wend.  300; 

294.  Fallon  v.  INIanning,  35  Mo.  271 ;  Chaf- 

2 Gilbert  v.  Kennedy,  22  Mich.  5.  fee  v.  Sherman,  26  Vt.  237;  Soule  v. 

3  White  V.  Webb,    15   Conn.   202;  White,  14  Me.  436;  Mead  v.  Thomp- 

Seaman  V.  Luce,  23  Barb.  240;  Chad-  son,  78  111.  62. 

wick  V.  Lamb,  29  Barb.  518;  Rhoads  ■'Boyden  v.  Moore,  11  Pick.  362 

V.  Woods,  41  Barb.  471;  Sherman  v.  ^  Berry  v.  Kelley,  4  Robt.  106. 

Fall  River  Iron  W.  Co.  5  AUen,  213;  « Chambers  v.  Hunt,  18  N.  J.  L.  339. 


PARTIES   TO   SUE   AND   BE   SUED.  211 

suing  for  an  injury  done  to  one  of  tliem.^  Where  tvfo  consta- 
bles levy  on  the  same  goods  by  virtue  of  separate  executions, 
they  cannot  join  in  an  action  against  one  who  takes  away  the 
goods.^  One  of  several  joint  debtors  whose  separate  goods  are 
taken  on  execution  and  wasted,  must  sue  alone  for  redress ;  and 
so  if  the  officer  extorsively  demand  and  receive  of  the  debtors 
illegal  fees.^ 

Actions  for  torts,  connected  with  the  matter  of  a  contract, 
where  the  tort  consists  in  the  niere  omission  of  a  contract  duty, 
must  be  brought  by  the  party  injured.* 

In.  one  suit  the  court  will  not  take  cognizance  of  distinct  and 
separate  claims  of  different  persons.  "Where  the  damage  as 
well  as  the  interest  is  several,  each  party  must  sue  separately.' 
Whether  the  plaintiffs  in  a  joint  action  are  copartners  or  not  is 
immaterial,  so  long  as  their  cause  of  action  is  shown  to  be  joint.* 

JoiXT    AND    SEVEKAI.    LIABILrTY  FOR    TORTS. As   tO   tOrtS  which 

may  be  committed  by  several,  the  action  may  be  brought  against 
all  who  participate,  or  against  one  or  any  number  of  them.'^ 
They  may  participate  so  as  to  be  thus  jointly  or  severally  liable 
by  preconcert  to  do  the  act,  or  to  procure  it  to  be  done ;  by 
jointly  taking  part  in  doing  it ;  or  by  afterwards  adopting  it  as 
principals.^ 

The  extent  of  individual  participation  in,  or  of  expected 
benefit  from,  a  joint  tort  is  immaterial ;  each  and  all  of  the  tort- 
feasors are  liable  for  the  entire  damage.^     The  law  is  thus  accu- 

J  Winans  v.  Denman,  3  N.  J.  L.  124.         « Lewis  v.  Read,  13  M.  &  W.  834; 

2  Warne  v.  Rose,  5  N.  J.  L.  809.  Davis  v.  Newkirk,  5  Denio,  92;  Cook 

*  Ulmer  V.  Cunningham,  2  Greeiilf.  v.  Hopper,  23  Mich.  511;  Bonnell  v. 

117.  Dunn,  28  N.  J.  L.  153;  Ford  v.  Will- 

•>  Fairmount  R.  R.  Co.  v.  Slater,  54  iams,  13  N.  Y.  584;  Bell  v.  Loomis, 

Pa.  St.  375.  29  N.  Y.  412;  Hyde  v.  Cooper,  26  Vt. 

^TheGoYernorv.  Hicks,12Ga.  186;  552;    Lewis    v.   Johns,  34  Cal.  629; 

Rhodes    v.    Booth,     14    Iowa,    575;  Adams  v.   Freeman,   9  John.    118; 

Schaeffer  v.  Marienthal,  17  Oliio  St.  Guile  v.  Swan,  19  John.  381;  Hume 

183.  V.  Oldacre,  1  Stark.  351;  Stewart  v. 

6  Wood  V.  Fithian,  24  N.  J.  L.,  33.  Wells,  6  Barb.  81 ;  Brown  v.  Perkins, 

'Williams  v.  Sheldon,  10  Wend.  1  Allen,  89;  Wheeler  v.  Worcester, 

654;  Merryweather  v.  Nixan,  8  T.  R.  10  Allen,  591. 

189;  Wheeler  V.  Worcester,  10  Allen,         *Page  x.   Freeman,    19  Mo.    421; 

591;  Murphy  V.  Wilson,  44  Mo.   313;  Wright    v.    Lathrop,    2   Ohio,    275; 

Moore  v.  Appleton,  20  Ala,  633.  Knickerbocker  v.  Colver,  8Cow.  Ill; 


212  ENTIRETT   OF   DA3*IAGES. 

rately  and  compreliensively  laid  down  in  a  'New  York  case :  "  To 
entitled  the  plaintiff  to  a  verdict  against  all  tlie  defendants  as 
joint  trespassers,  it  must  appear  that  they  acted  in  concert  in 
committing  the  trespass  complained  of;  if  some  aided  and 
assisted  the  others  to  commit  the  trespass,  or  assented  to  the  tres- 
pass committed  by  others,  having  an  interest  therein,  they  are 
all  jointly  guilty  ;  ...  it  would  not  be  material  if  they 
had  unequal  interests  in  the  avails  of  the  trespass ;  for  those  who 
confederate  to  do  an  unlawful  act  are  deemed  guilty  of  the  whole, 
although  their  share  in  the  profits  may  be  small.  But  if  any  of 
the  defendants  are  not  guilty  at  all ;  or,  if  any  of  them,  though 
guilty,  were  acting  separately  and  for  themselves  alone,  without 
any  concert  with  the  others,  they  ought  to  be  acquitted,  and 
those  only  found  guilty  who  were  acting  jointly."  ^  "Where  a 
master  is  liable  for  the  tort  of  his  servant,  a  principal  for  that 
of  his  agent  or  deputy,  they  are  jointly  Uable.'^  If  an  officer  take 
property  of  a  wrong  person  on  process,  he  as  well  as  the  party 
or  attorney  who  dhects  it,  and  even  the  sureties  who  execute  a 
bond  of  indemnity  to  the  ofiicer  covering  that  tort,  may  be  held 
jointly  liable.^  An  action  for  deceit,  in  the  nature  of  a  conspir- 
acy, cannot  be  sustained  against  a  principal  for  the  unauthor- 
ized, fraudulent  acts  and  representations  of  the  agent  alone.  ^  A 
joint  action  against  two  may  be  maintained  when  the  injury 
complained  of  resulted  from  their  concurrent  neghgence.^ 

In  an  action  for  diverting  water  from  a  natural  watercourse 
so  as  to  flood  the  plaintiff's  land,  it  appeared  that  the  defendant 
did  it  by  waUing  the  banks  on  his  own  land  to  preserve  them. 

Turner  v.  Hitchcock,  20  Iowa,  310;  Lee,  3  Hill,  523;  Crook  v.  Wright. 

Nelson  v.  Cook,  17111.  443;  McManus  Ey.  &  M.  278;  Armstrong  v.  Dubois, 

V.  Lee,  43  Mo.  206;  Brown  v.  Per-  4  Keyes,  291. 

kins,  1  AUen,  89;  Barden  v.   Fitch,  ^j^^i-ray  ^  Lovejoy,  2  Chff.  191;  3 

109  Mass.  154;  Williams  v.  Sheldon,  Wall.  1;  Lewis  v.  Johns,  34  Cal.  629; 

10  Wend.  654;  Currier  v.  Brown,  63  Knight  v.  Nelson,  117  Mass.  458;  Ball 

Me.  323.  V.  Loomis,  29  N.  Y.  412;  Herring  v. 

'Williams  v.   Sheldon,  10  Wend.  Hoppock,    15    N.  Y.    409;    Root    v. 

656.  Chandler,  10  Wend.  110. 

2Bulme  V.   Hutton,  9  Bing.   471;  "Page  v.  Parker,  40  N.  H.  47. 

Waterbury  v.  Westervelt,  9  N.  Y.  ^Klauder  v.  McGrath,  35  Pa.  St. 

598;  Morgan  v.  Chester,  4  Conn.  387;  128;  Colegrove  v.  N.  Y.  etc.  R.  R,  Co. 

Barker  v.  Braham,  3  Wils.  368;  Bates  20  N.  Y.  492;  Peckham  v.  Burlington, 

V.  PiUing,  6  B.  &  C.  38;  Newberry  v.  Brayton  (Vt.),  134. 


PAKTIES  TO  SUE  A^'D  BE  SUED.  213 

A  thiixl  pereon  by  certain  acts  separate  from  the  defendant  and 
without  concert  with  him,  increased  and  added  to  the  volume 
of  water  that  flowed  upon  the  plaintiff's  land.  It  was  held  that 
the  defendant  was  only  liable  for  the  flooding  caused  by  him ; 
that  he  was  not  liable  for  that  part  of  the  plaintiff's  damages 
resulting  from  the  increased  volume  of  water  caused  by  such 
third  person.^  But  where  nine  different  creditors  acting  sepa- 
rately, without  concert,  and  without  knowing  that  they  were 
employing  a  common  agent,  wrongfully  caused  theu"  debtor  to 
be  arrested  on  their  several  writs,  by  the  same  officer,  who 
served  the  "VN^rits  simultaneously,  and  by  vu'tue  thereof  com- 
mitted the  debtor  to  jail,  where  he  was  confined  upon  all  of  the 
writs  at  the  same  time,  they  were  deemed  joint  trespassers,  and 
full  satisfaction  recovered  by  the  debtor  from  one  of  them  was 
held  a  bar  to  an  action  against  the  others.^  Bigelow,  J.,  said : 
"  As  a  matter  of  first  impression,  it  might  seem  that  the  legal 
inference  from  .  .  (the  fact  that  the  defendants  acted  sep- 
aiately  and  independently  of  each  other  without  an}^  apparent 
concert  among  themselves)  .  .  is  that  the  plaintiff  might 
hold  each  of  them  hable  for  his  tortious  act,  but  that  they  could 
not  be  regarded  as  co-trespassers,  in  the  absence  of  proof  of  any 
intention  to  act  together,  or  of  knowledge  that  they  were  en- 
gaged in  a  common  enterprise  or  undertaking.  But  a  careful 
consideration  of  the  nature  of  the  action,  and  of  the  injmy 
done  to  the  plaintiff,  for  which  he  seeks  redress  in  damages,  will 
disclose  the  fallacy  of  this  view  of  the  case.  The  plaintiff  al- 
leges in  his  declaration  that  he  was  unlawfully  arrested  and  im- 
prisoned. This  is  the  wrong  which  constitutes  the  gist  of  the 
action,  and  for  which  he  is  entitled  to  indemnity.  But  it  is  only 
one  wrong,  for  which  in  law  he  can  receive  but  one  compensa- 
tion. He  has  not  in  fact  suffered  nine  separate  arrests,  or  un- 
dergone nine  separate  terms  of  imprisomnent.  The  wi'its  against 
him  were  aU  served  sunultaneously,  by  the  same  officer,  acting 
for  all  the  creditors,  and  the  confinement  was  enforced  by  the 
jador  on  aU  the  processes,  contemporaneously,  during  the  entire 
period  of  his  unprisonment.  The  alleged  trespasses  on  the  per- 
son of  the  plaintiff  were,  therefore,  sunultaneous  and  contem- 

'  Wallace  v.  Drew,  59  Barb.  413.  '  Stone  v.  Dickinson,  5  Allen,  39, 


214  ENTIRETY    OF    DAJNIAGES. 

poraneous  acts,  committed  on  him  by  the  same  person,  acting  at 
the  same  time  for  each  and  all  of  the  plaintiffs  in  the  nine  v.Tits 
upon  which  he  was  arrested  and  imprisoned.  It  is,  then,  the 
common  case  of  a  wrongful  or  unlawful  act,  committed  by  a 
common  agent  acting  for  several  and  distinct  principals. 

"  It  does  not  in  any  way  change  or  affect  the  injury  done  to  the 
plaintiff,  or  enhance  in  any  degree  the  damages  which  he  has 
suffered,  that  the  immediate  trespassers,  by  whom  the  tortious 
act  was  done,  were  the  agents  of  several  different  plaintiffs, 
who  without  preconcert,  had  sued  out  separate  writs  against 
him.  The  measure  of  his  indemnity  cannot  be  made  to  depend 
on  the  number  of  principals  who  employed  the  officers  to  arrest 
and  imprison  him.  We  know  of  no  rule  of  law  by  which  a 
single  act  of  trespass  committed  by  an  agent,  can  be  multiplied 
by  the  number  of  principals  w^ho  procured  it  to  be  done,  so  as 
to  entitle  the  party  injured  to  a  compensation  graduated,  not 
according  to  the  damages  actually  sustained,  but  by  the  num- 
ber of  persons  through  whose  instrumentahty  the  injury  was 
inflicted.  The  error  of  the  plaintiff  consists  in  supposing  that 
the  several  parties  who  sued  out  writs  against  him,  and  caused 
him  to  be  arrested  and  imprisoned,  cannot  be  regarded  as  co- 
trespassers,  because  it  does  not  appear  that  they  acted  in  con- 
cert, or  knowingly  employed  a  common  agent.  Such  preconcert 
or  knowledge  is  not  essential  to  the  commission  of  a  joint  tres- 
pass. It  is  the  fact  that  they  all  united  in  the  wrongful  act,  or 
set  on  foot  or  put  in  motion  the  agency  by  which  it  was  com- 
mitted, that  renders  them  jointly  liable  to  the  person  injured. 
Whether  the  act  was  done  by  the  procurement  of  one  person  or 
of  many,  and,  if  by  many,  whether  they  acted  from  a  common 
purpose  and  design  in  which  they  all  shared,  or  from  separate 
and  distinct  motives,  and  without  any  knowledge  of  the  inten- 
tions of  each  other,  the  nature  of  the  injury  is  not  in  any  de- 
gree changed,  or  the  damages  increased  which  the  party  injured 
has  a  right  to  recover.  He  may,  it  is  true,  have  a  good  cause 
of  action  against  several  persons  for  the  same  wrongful  act,  and 
a  right  to  recover  damages  against  each  and  aU  therefor,  with 
the  privilege  of  electing  to  take  his  satisfaction  de  melio7'ibus 
damnis.  But  there  is  no  rule  of  law  by  which  he  can  claim  to 
convert  a  joint  into  a  several  trespass,  or  to  recover  more  than 


PARTIES    TO    SUE   AOT3   BE    SUED.  215 

one  satisfaction  for  Ms  damages,  when  it  appears  that  he  has 
suffered  the  consequences  of  a  single  tortious  act  only."^ 

Separate  owners  are  not  jointly  hable  for  injuries  jointly  com- 
mitted by  their  res})ective  animals,  though  they  happen  to  join 
in  a  single  transaction.  Each  owner  is  liable  only  for  the  in- 
jury committed  by  his  own  animal ;  and  his  habiUty  is  based  on 
his  duty  to  restrain  it,  and  his  neglect  in  allowing  it  to  go  at 
large  where  in  pursuing  its  known  natural  incluiation  it  may  do 
damage.'^ 

If,  however,  the  separate  owners  keep  them  in  common, 
and  by  a  concurring  negligence  or  design  suffer  them  to 
run  at  large  as  one  herd,  then  they  are  jointly  liable,  for  all 
damages,  by  the  united  trespasses  of  all  or  any  of  them.^  Two 
raih'oad  companies  used  the  same  track  by  joint  arrangement, 
governed  by  common  rules ;  their  trains  coUided  owing  to  mu- 
tual and  concurring  negligence,  and  caused  a  single  injury. 
They  were  held  jointly  hable.^  The  same  rule  applies  to  ad- 
joining land  owners  by  whose  concurring  negligence  an  insecure 
party  wall  is  maintained.^ 

Where  the  effects  of  the  independent  acts  of  two  persons  on 
opposite  sides  of  a  street  united  m  causing  injury,  there  being 
no  concert  of  action,  they  were  held  not  jointly  hable.^  So 
where  a  dam  was  filled  with  deposits  of  coal  dirt  from  different 
mines  on  the  stream  above  the  dam,  worked  by  different  per- 
sons, having  no  connection  with  each  other,  it  was  held  they 
were  not  jointly  hable  for  the  combined  results  of  throwing  coal 
dirt  into  the  river  by  all  the  workers  of  mines ;  that  the  ground 
of  action  was  not  the  deposit  of  dirt  in  the  dam  by  the  stream, 
but  the  negligent  act  above.  Throwing  the  dirt  into  the  stream 
was  the  tort;  the  deposit  in  the  dam  only  the  consequence. 
The  tort  of  each  was  several  when  committed,  and  did  not  be- 
come joint  because  its  consequences  united  with  other  conse- 

'See  Weill  v.  Butler,  13  Abb.  N.  Wend.    562;  Buddington  v.  Shearer, 

S.  139.  20  Pick.  477.                               • 

'  Auchmiity  v.  Hum,  1  Denio,  495;  » Jack  v.  Hudnall,  25  Ohio  St.  255. 

Wilbur   V.  Hubbard,  35  Barb.  303;  ^Colgrove  v.  N.  Y.  etc.  R.  R.  Co. 

Partenheimer    v.     Van    Order,    20  20  N.  Y.  492. 

Barl).   479;  Russell  v.  Tomlinson,  2  ^Klauder  v.  McGrath,  33  Pa.  St. 

Conn.  206:   Adams  v.  Hall,  2  Vt.  9;  128. 

Van    Steinbergher     v.    Tobias,     17  « Bard  v.  Yohn,  34  Pa.  St.  482. 


216  ENTIRETY   OF   DAMAGES. 

quences.^  Agnew,  J.,  referring  to  tlie  instructions  of  the  trial 
court  asserting  a  joint  liability,  or  the  habiht}^  of  each  for  the 
combined  results,  said :  "  The  doctrine  of  the  learned  judge  is 
somewhat  novel,  though  the  case  itself  is  new ;  but,  if  correct, 
is  well  calculated  to  alarm  aU  riparian  owners,  who  nday  find 
themselves  by  slight  negligence  overwhelmed  by  others  in  gi- 
gantic ruin.  It  is  immaterial  what  may  be  the  nature  of  their 
several  acts,  or  how  small  their  share  in  the  ultimate  injury. 
If,  instead  of  coal  dirt,  others  were  felling  trees  and  suffering 
their  tops  and  branches  to  float  down  the  stream,  finally  find- 
ing a  lodgment  in  the  dam  with  the  coal  dirt,  he  who  threw  in. 
the  coal  dirt,  and  he  who  felled  the  trees,  would  each  be  re- 
sponsible for  the  acts  of  the  other.  In  the  same  manner  sepa- 
rate trespassers,  who  should  haul  their  rubbish  upon  a  city  lot, 
and  throw  it  upon  the  same  pile,  would  each  be  liable  for  the 
whole,  if  the  final  result  be  the  only  criterion  of  liability."  The 
court  rejected  this  view  and  held  as  above.  The  learned  judge 
further  said :  "  True,  it  ma}^  be  difficult  to  determine  how 
much  dirt  came  from  each  colliery,  but  the  relative  proportions 
thrown  in  by  each  may  form  some  guide,  and  a  jury  in  a  case 
of  such  difficulty  caused  by  the  party  himself,  would  measure 
the  injury  of  each  with  a  liberal  hand.  But  the  difficulty  of 
separating  the  injury  of  each  from  the  others  would  be  no  rea- 
son that  one  man  should  be  held  to  be  liable  for  the  torts  of 
others  without  concert.  It  would  be  simply  to  say,  because  tho 
plaintiff  fails  to  prove  the  injury  one  man  does  him,  he  may 
therefore  recover  from  that  one  aU  the  injury  that  others  do. 
This  is  bad  logic  and  hard  law.  "Without  concert  of  action,  no 
joint  suit  could  be  brought  against  the  owners  of  aU  the  col- 
lieries, and  clearly  this  must  be  the  test."  ^ 

'  Little    Schuylkill    Nav.    Co.    v.  cian,  having  an  extensive  practice, 

Richards'  Adm.  57  Pa.  St.  143.  from  the  profits  of  which  he  was 

^  A  novel  and  interesting  case  in-  able  to  furnish  her  a  comfortable 
volving  this  point  arose  in  Ohio,  moans  of  support;  that  about  April, 
under  ^he  provisions  of  an  act  "To  1865,  he  became,  and  was  in  the 
provide  against  the  evils  resulting  habit  of  getting  intoxicated,  and  so- 
from  the  sale  of  intoxicating  liq-  continued  until  his  death  in  1869,  of 
uors."  The  widow  of  Dr.  Watt  which  the  defendant  had  notice; 
brought  an  action,  and  in  her  com-  that  during  that  period,  and  at  sun- 
plaint  alleged  that  he  was  a  physi-  dry  and  divers  times,  the  defendant 


PARTIES   TO    SUE   AXD   BE   SUED. 


217 


sold  him,  in  quantities  of  from  one 
pint  to  a  quart,  intoxicating  liquors, 
causing  said  Watt  to  become  intoxi- 
cated and  an  habitual  drunkard; 
and  by  reason  thereof  during  said 
period,  and  resulting  therefrom,  he 
became  incapable  of  attending  to 
his  usual  business,  and  he  squan- 
dered his  estate,  and  so  deprived 
her  of  her  means  of  support.  John- 
son, J.,  speaking  for  a  majority  of 
the  court,  said:  "The  statute  gives 
the  action  against  '  any  person  who 
shall  .  .  have  caused  the  intoxi- 
cation.' This  intoxication  may  be 
'habitual  or  otherwise.'  A  right  of 
action  is  given  for  damages  result- 
ing from  single  cases  of  intoxication 
or  from  habitual  intoxication.  Un- 
der the  code,  several  distinct  causes 
of  action  may  be  joined  in  one  ac- 
tion for  damages  growing  out  of  dis- 
tinct cases  of  intoxication,  ■where 
each  cause  of  action  is  separate  and 
distinct,  and  is  between  the  same 
parties;  but  if  on  trial  it  appears 
that  some  of  the  acts  of  intoxica- 
tion were  caused  by  others,  no  re- 
covery as  to  them  could  be  had.  In 
such  case  the  causes  of  action  are 
separate,  and  the  damages  resvilting 
from  each  are  distinct  and  discon- 
nected; and  the  causes  of  action 
should  be  separately  stated  and  num- 
bered. 

"  In  such  a  case  tlie  question  would 
be  as  to  each  case  of  intoxication, 
who  caused  it,  and  what  damages 
resulted  from  it.  What  would  con- 
stitute a  causing  of  a  single  act  un- 
der the  statute  to  render  one  liable 
would  theji  arise.  That  question  is 
not  made  in  this  case.  The  cliarge 
is  of  causing  habitual  intoxication 
for  a  series  of  years.  The  damages 
alleged  are  not  the  proximate  results 
f x-om  distinct  cases,  but  the  ulthnate 
result  of  habitual  intoxication.  This 
continued  habit  of  drinking  is  al- 


leged to  have  rendered  the  husband 
incapable  of  attending  to  his  busi- 
ness, and  caused  him  to  squander 
his  estate.  This  final  result  de- 
prived the  plaintiff  of  her  means  of 
supi3ort.  It  is  a  charge  of  repeated 
illegal  acts,  producing  by  their 
united  effects  an  ultimate  state  ov 
condition  of  Dr.  Watt,  out  of  which 
the  damages  arise. 

"  The  plaintiff  asks  to  recover  the 
damages  resulting  from  this  state  or 
condition  of  her  husband,  caused  by 
repeated  illegal  sales  for  a  series  of 
years,  and  not  the  damages  from  a 
single  case  of  intoxication,  nor  of  a 
series  of  distinct  cases  at  different 
times,  caused  by  separate  and  dis- 
tinct illegal  sales. 

' '  The  means  used  Tvere  sales  in 
quantity  by  the  pint  and  quart. 
To  a  j)erson  of  Dr.  Watt's  habits, 
frequent  sales  in  such  quantity  were 
calculated  to  produce  the  I'esult  com- 
plained of. 

"Every  person  is  presumed  to 
have  intended  the  natural  and  prob- 
able consequences  of  his  acts.  The 
defendant  was,  in  violation  of  law, 
using  means  calculated  to  produce 
the  alleged  injury.  If  the  jury 
found  that  this  was  so,  and  that  the 
means  so  employed  -were  so  con- 
tinued as  to  produce  the  condition 
of  the  husband  alleged,  then  they 
had  the  right  to  presume  he  intended 
the  result  which  follo"wed,  though 
others,  with  or  without  preconcert, 
contributed  to  cause  it. 

' '  The  intent  with  which  the  act 
or  acts  are  done  is  always  an  im- 
portant element  in  the  case.  In  this 
case  it  is  peculiarly  so.  The  means 
used,  the  force  or  agency  employed, 
are  to  be  considered  in  ascertaining 
that  intent. 

"  If,  as  seems  to  be  claimed,  a  de- 
fendant can  only  be  liable,  except  in 
cases  of    conspiracy  or  agreement, 


218 


ENTIRETY    OF   DAilAGES. 


when  lie  is  tlie  sole  causa  of  the  ha- 
bitual intoxication,  and  no  recovery 
can  be  had  unless  the  damages  can 
be  separated  (an  impossibility  in 
most  cases  of  this  class),  then  this 
part  of  the  statute  is  virtually  a 
dead  letter. 

"Why  should  the  defendant  be 
exonerated  from  the  injury  he  has 
caused  by  his  habitual  wrongs  for  a 
series  of  years  by  showing  that  oth- 
ers, withovit  his  knowledge,  have 
also  contributed  by  like  means  to 
this  result  ?  He  was  using  adequate 
means  to  produce  the  result,  and 
may  therefore  fairly  be  presumed  to 
have  intended  it.  True,  he  may  not 
have  enjoyed  a  monopoly  in  the 
profits  accruing,  by  reason  of  the 
competition  of  others  in  a  common 
business;  but  that  certainly  is  no 
reason  why  he  should  not  be  liable 
for  the  injuries  he  was  intentionally 
engaged  in  causing.  If  such  is  the 
law,  then  he  could  take  advantage 
of  his  own  wrong  by  showing  that 
during  this  four  years  another  or 
others  had  also  contributed. 

"  Such  is  not  the  law  in  criminal 
cases  at  common  law,  as  will  be 
shown  liereafter;  and  "we  know  no 
reason  for  greater  strictness  under 
this  statute  than  in  cases  in  the 
highest  crimes  known  to  the  law. 
This  section  of  the  statute,  we  take 
it,  is  to  be  construed  by  ordinary 
canons  of  construction." 

The  foregoing  views  of  the  court 
presuppose  that  the  defendant  in- 
sisted on  complete  exemption  from 
responsibility  because  other  persons 
made  sales  to  Dr.  Watt.  But  the  case 
as  reported  does  not  disclose  that  any 
such  position  was  taken.  The  de- 
fendant asked  the  court  to  charge 
the  jury  "that  the  defendant  was 
only  liable  for  damages  to  the  plaint- 
iff occasioned  by  intoxication  pro- 
duced  by    the   intoxicating    liquor 


which  the  defendant  himself  had 
sold  to  said  Dr.  Watt,  and  that  the 
defendant  was  not  liable  for  any 
damages  produced  by  the  intoxica- 
tion of  said  Dr.  Watt,  occasioned  by 
intoxicating  liquors  sold  to  him  dur- 
ing said  period  by  other  persons;  " 
which  charge  the  court  refused  to 
give  except  with  the  following  qual- 
ifications :  ' '  Should  you  find  that  the 
defendant  sold  intoxicating  liquor  to 
Joseph  Watt  in  violation  of  law 
witliin  the  time  charged  in  the  peti- 
tion, and  that  the  plaintiff  sustained 
damages  by  reason  of  the  intoxica- 
tion of  said  Watt,  caused  thereby 
to  her  person,  property,  or  means  of 
support,  the  fact  that  other  persons 
also  sold  liquor  to  said  Watts,  in  vio- 
lation of  law,  within  that  period,  and 
which  liquor  may  have  contributed 
to  increase  the  intoxication,  and  con- 
sequently to  enliance  the  injury  re- 
sulting to  the  plaintiff  therefrom; 
such  facts,  if  they  be  shown  to  have 
existed,  will  not  exonerate  the  de- 
fendant from  the  consequence  of  his 
wrongful  acts;  but,  on  the  contrary, 
he  will  still  be  responsible  for  all  the 
injury  I'esulting  to  the  plaintiff  from 
the  intoxication  of  Joseph  Watt, 
caused  by  his  illegal  sale  of  liquor  to 
him.  If  you  can  separate  the  dam- 
ages resulting  from  the  intoxication 
caused  hy  illegal  sales  to  Watt  hy  de- 
fendant from  the  damages  resulting 
from  sales  by  others,  you  must  do  so; 
hut,  if  such  separation  cannot  he 
made,  you  ivill  render  your  verdict 
against  the  defendant  for  all  the  act- 
ual pecuniary  damages  resulting  to 
the  ptlaintiff  in  person,  property  or 
means  of  support,  hy  reason  of  the 
intoxication  of  the  said  Joseph 
Watt,  to  ivhich  intoxication  the  ille- 
gal sales  of  intoxicating  liquor  by 
the  defendant  contributed." 

The  judgment  for  the  plaintiff  was 
affirmed.  And  uj)on  the  state  of  facts 


PAKTIES   TO   SUE   A^D   BE   SUED. 


219 


supposed  by  the  defendant's  request, 
the  appellate  court  treat  the  defend- 
ant and  all  other  persons  who  sold 
liquor  to  Dr.  Watt  as  jointly  and  sev- 
erally Uable  —  as  joint  tortfeasors. 
On  that  point  the  learned  judge  avIio 
deUvered  the  majority  opinion  states 
the  defendant's  position  and  the 
ans^\-er  as  follows:  "  Counsel  pro^)- 
erly  admit  that  where  two  or  more 
act  by  concert  in  an  unlawful  de- 
sign, each  is  hable  for  all  damages, 
but  claim  if  each  acts  independently, 
or  without  the  knowledge  of  the 
other,  then  he  is  only  liable  for  his 
own  acts.  In  the  former  case,  the 
acts  of  others  co-operating  are  his 
acts,  because  they  are  only  in  fur- 
therance of  a  common,  unlawful 
design. 

"  If  there  is  no  common  intent, 
there  can  be  no  joint  habihty,  but 
each  is  responsible  for  his  own  act. 
If  there  is  a  common  intent,  or  if 
one  without  such  intent  aids  one 
■with  it,  in  doing  an  unlawful  act, 
the  latter  is  nevertheless  guilty, 
though  not  the  sole  cause.  They 
claim  this  principle  is  limited  to 
cases  of  conspu-ac}^  or  concerted  ac- 
tion. In  this  we  think  they  mistake 
the  authorities.  We  hold  that  this 
common  intent,  which  is  sufficient 
to  create  mutual  liability,  may  exist 
■without  previous  agreement  or  a 
common  understanding  to  do  the  im- 
lawful  act,  and  that  it  may  be  pre- 
sumed to  exist,  when  the  means  em- 
ployed create  that  presumption,  as 
well  as  by  proving  an  express  agree- 
ment." 

Tliis  "common  intent  wliich  is 
sufficient  to  create  mutual  liability  " 
is,  furtlier  on  in  the  opinion,  thus 
elucidated:  "If  the  defendant  was 
using  the  means  calculated  to  pro- 
duce the  injur}-,  the  law  presumes 


that  he  intended  to  produce  it.  If 
others,  with  or  without  concert,  were 
concurrently  co-oi)erating  with  him, 
using  like  means,  they  were  acting 
with  the  same  common  design,  and 
if  the  injury  resulted,  each  is  liable, 
though  each  was  acting  without  the 
knowledge  of  what  the  other  Avas 
doing.  So  if  the  defendant  alone 
was  using  such  means  as  created  this 
presumption  of  intent  to  do  the  act, 
and  another,  -without  concert,  free 
from  such  intent,  was  contributing 
to  the  injury,  the  former  is  liable  for 
all  damages,  notwithstanding  the 
other  also  contributed." 

The  majority  of  the  court  come  to 
the  conclusion  that  vendors  of  in- 
toxicating liquors  who  separately 
sell  to  a  man,  who,  by  thus  imbibing, 
in  a  period  of  several  years,  becomes 
an  habitual  di-unkard,  are  in  law 
jointly  and  severally  hable  for  that 
result;  though  they  have  no  concert 
in  the  sense  of  communicating 
with  each  other  on  the  subject; 
though  they  do  not  act  together, 
that  is,  no  two  of  them  join  in  any 
one  sale,  and  each  may  be  unac- 
quainted -with  the  others,  and  per- 
haps may  not  even  know  that  there 
are  others;  though  the  only  circum- 
stance that  is  supposed  to  join  and 
unify  them  is  that  they  are  engaged 
in  the  same  kind  of  business  and 
each  is  doing  such  a  business  as  has 
a  tendency  to  make  drunkards;  and 
in  the  particular  case  thej-  have  thus 
made  one.  See  Kearney  v.  Fitzger- 
ald, 43  Iowa,  583;  Jewett  v.  Wan- 
shura,  43  Iowa,  574;  Hitchner  v. 
Ehlers,  44  Iowa,  40;  La  France  v. 
Krayer,  42  Iowa,  143;  Woolheather 
v.  Riseley,  38  Iowa,  486;  Ermis  v. 
Sliell}^  47  Iowa,  552;  Jackson  v. 
Noble,  54  Iowa,  641. 


220  LEGAL   LIQUIDATIONS   AND   EEDUCTIONS. 

CHAPTER  Y. 

LEGAL  LIQUIDATIONS  AND  REDUCTIONS. 

Section  1. 
circuity  of  action. 

A  legal  liquidation  and  extinguishment  of  reciprocal  and  connected  causes 
of  action  on  which  the  damages  are  by  law  the  same. 

The  defense  of  circuity  of  action  is  available  where  the  par- 
ties stand  in  such  legal  relation  to  each  other  that  if  the  plaint- 
iff recovers  against  the  defendant,  the  latter  thereupon  and  by 
reason  thereof,  has  a  cause  of  action  against  the  former  for  the 
very  sum  so  recovered.  The  plaintiff's  demand  is  then  neutral- 
ized by  his  liability  consequent  u^on  its  recover}^  to  pay  back 
the  very  sum  recovered ;  by  a  legal  equation  the  plaintiff  has 
no  cause  of  action.  This  defense  accomplishes  the  same  re- 
sult as  would  the  circuity  of  action.  Thus  in  an  action  upon 
the  promissory  note  of  a  partnership  against  the  surviving 
partner,  it  was  held  that  an  indenture  by  which  the  plaintiff 
and  others  had  covenanted  to  indemnify  the  defendant  against 
all  debts  due  from  the  partnership,  and  against  all  actions 
brought  against  him  by  reason  of  such  debts,  was  a  bar  to  the 
action.^ 

On  this  principle,  if  a  creditor  make  a  valid  agreement  never  to 
sue  his  debtor  upon  a  specified  demand,  it  operates  to  extinguish 
the  debt  like  a  release.^  But  when  a  covenant  is  that  a  de- 
mand shall  not  be  put  in  suit  within  a  limited  time,  a  breach 
thereof  cannot  be  pleaded  in  bar  of  that  demand.     The  reason 

'Whitaker  v.  Salisbury,  15  Pick.  7  Dana,  170;  Jackson  v.  Stackhoiise, 

534;  Austin  V.  Cunimings,  10  Vt.  26.  1  Cow.   122;  Sewell  v.  Sparrow,   16 

2  Robinson  v.  Godfrey,  2  Mich.  408;  Mass.  24;  Gibson  v.  Gibson,  15  Mass. 

Cuyler  v.  Cuyler,  2  John.  186;  Row-  106;  White  v.  Dingley,  4  Mass.  433; 

ley  V.  Stoddard,  7  John.  207.  note  (a);  Whitaker  v.  Salisbury,  15  Pick.  534; 

Phelps  V.  Johnson,  8  John.  54;  Lane  Jones  v.  Quennepiac  Bank,  29  Conn. 

V.  Owings^    Bibb,  247;  Millett  v.  25;  Clark  v.  Bush,  3  Cow.  151;  Dear- 

Hayford,  1  Wis.  401;  Reed  v.  Shaw,  born  v.  Cross,  7  Cow.  48. 
1  Blackf.  245;  McNeal  v.  Blackburn, 


CmCUITY    OF    ACTIOX.  221 

is  that  the  damages  for  the  breach  of  the  latter  covenant  being 
uncertain  and  not  determinable  by  the  amount  of  the  demand, 
the  principle  of  circuity  of  action  is  not  applicable. 

The  same  principle  of  avoiding  circuity  of  action  will  some- 
times operate  in  favor  of  a  plaintiff.  A  town  was  compelled 
to  pay  damages  for  an  injury  resulting  from  a  defect  in  a  high- 
way occasioned  by  the  want  of  repair  of  a  cellar  way  con- 
structed in  a  sidewalk  and  leading  to  an  adjoining  building 
occupied  by  a  tenant ;  it  was  held  that  the  occupant  and  not 
the  owner  was  liable  to  the  town  for  such  damages ;  and  is 
prima  facie  liable  to  third  persons  suffering  injury  from  any 
such  defect ;  but  if  there  be  an  express  agreement  between  the 
landlord  and  tenant  that  the  former  shall  keep  the  premises  in 
repau",  so  that  in  case  of  a  recovery  against  the  tenant  he  would 
have  his  remedy  over,  then  the  party  injm-ed,  to  avoid  circuity 
of  action,  may  bring  his  suit  in  the  first  instance  against  the 
landlord.^ 

When  there  are  reciprocal  covenants  in  the  same  deed  de- 
pending on  the  same  rule  of  damages,  one  covenant  may  be 
pleaded  in  bar  to  another,  to  avoid  circuity  of  action.  But 
where  the  covenants  are  distinct  and  independent,  they  cannot 
be  so  pleaded,  for  the  damages  may  not  be  commensurate,  and 
each  party  must  recover  against  the  other  separate  damages  ac- 
cording to  the  justice  of  the  case.- 

This  defense  has  been  termed  a  setting  off  of  one  right  of 
action  against  another.^  It  is  available  though  the  damages  be 
unliquidated,  but  the  damages  on  the  two  causes  of  action  must 
be  the  same  in  amount  as  matter  of  law,  and  must  so  appear 
by  the  pleadings.*  In  other  words,  to  constitute  a  good  plea  in 
avoidance  of  circuity  of  action,  it  must  show  that  the  sum 
which  the  defendant  is  entitled  to  recover  from  the  plaintiff  is 
necessarily  the  same  as  that  in  respect  of  which  the  plaintiff  is 

'  Lowell  V.  Spaulding,  4  Cush.  277;  ^  Mayne  on  Dam.  115. 

Payne  v.  Rogers,  2  H.  Bl.  349.  "  Id. ;   Turner  v.  Thomas,  L.  R.  6 

=  Gibson  v.  Gibson,  15  Mass.  106,  C.   P.  610;   DeMattos  v.    Saunders, 

112;  Guard  v.  Wliiteside,  13  111.  7;  L.  R.  7  C.  P.  46,  65;  Walmsley  v. 

Millett    V.    Hayford,    1    Wis.    401;  Cooper,    11   A.    &  E.    216;    Carr  v. 

Thurston  V.  James,  6  R.  1.4103;  How-  Stevens,  9  B.  &  C.  758;  Caunop   v. 

land  V.  Marvin,  5  Cal.  501;  Bac.  Abr.  Levy,  11  Q.  B.  769. 
Gov.  L. 


222  LEGAL   LIQUIDATIONS    AND    KEDUCTIONS. 

suing.  The  rigid  severity  and  precision  of  this  test  are  illus- 
trated in  the  following  case.  By  a  charter-party  it  was  agreed 
between  the  master  and  the  charterers  that  one-third  of  the 
stipulated  freight  should  be  paid  before  the  saihng  of  the  vessel, 
the  same  to  be  returned  if  the  cargo  was  not  dehvered  at  the 
port  of  destination, —  the  charterers  to  insure  the  amount  at  the 
owner's  expense,  and  deduct  the  cost  of  doing  so  from  the  first 
payment  of  freight.  The  charterers  paid  the  one-third  freight, 
deducting  the  premium  of  insurance.  The  vessel  and  cargo  did 
not  reach  their  port  of  destination.  In  an  action  by  the  char- 
terers to  recover  back  the  freight  so  paid,  the  owner  pleaded 
that  the  loss  of  the  part  of  the  freight  to  be  returned,  was  such  a 
loss  as  was  by  the  charter-party  to  be  insured  against  by  the  char- 
terers at  the  owner's  expense,  and  such  insurance,  if  effected, 
would  have  indemnified  the  defendant  against  the  loss  of  the 
freight  stipulated  to  be  returned ;  that  although  the  plaintiffs 
might,  with  the  use  of  reasonable  care  and  diligence,  have  ef- 
fected an  insurance  whereby  the  defendant  and  the  owner  of  the 
ship  would  have  been  fully  indemnified  against  the  loss  of 
the  one-third  freight  so  to  be  returned,  yet  the  plaintiffs  effected 
the  insurance  so  negligently,  and  out  of  the  usual  course  of  busi- 
ness, that  the  same  became  of  no  use  or  value,  and  the  defend- 
ant by  reason  of  such  improper  conduct  had  sustained  damages 
to  the  amount  of  the  said  third  freight  so  insured,  and  the 
plaintiffs  thereby  became  liable  to  the  defendant  for  the  same, 
and  liable  to  make  good  to  the  defendant  such  amount  as  he 
should  have  to  return  to  the  plaintiffs  under  the  charter-party, 
and  any  sum  paid  or  returned  by  the  defendant  to  the  plaint- 
iffs in  respect  of  the  freight  would  be  the  damage  sustained  by 
the  defendant  by  reason  of  such  improper  conduct  and  devia- 
tion, and  the  defendant  would  be  damnified  to  that  extent.  The 
court  held  that  the  plea  was  bad,  inasmuch  as  the  conclusion  it 
drew  was  not  warranted  by  the  facts  stated,  for  the  liability  of 
the  plaintiffs  in  respect  of  their  negligence  in  effecting  the  in- 
surance was  a  liability  for  damages,  which  were  not  necessarily 
identical  in  amount  with  the  claim  set  up  by  them  in  their  ac- 
tion. Jervis,  C.  J. :  "  It  is  not  denied  that  the  rule  in  question 
is  plain  and  well  ascertained,  viz. :  that  t€>  justify  a  defendant 
in  setting  up  a  demand  in  avoidance  of  circuity  of  action,  he 


cmcmTY  OF  ACTION.  223 

must  show  that  the  sum  which  he  claims  to  be  entitled  to  re- 
cover back  is  of  necessity  the  identical  sum  which  the  plaintiff 
is  suing  for.  The  onl}^  difficulty  arises  from  the  application  of 
the  rule.  I  was  somewhat  struck  by  a  difficulty  arising  from 
the  allegation  in  the  plea,  that,  by  and  through  the  negligent 
and  improper  conduct  of  the  plaintiffs  in  effecting  the  insur- 
ance, the  insurance  became  of  no  use  or  value,  and  the  defend- 
ant thereb}^  sustained  damage  to  the  amount  of  one-third  of  the 
freight  so  insured  ;  and  that  the  plaintiffs  thereby  became  liable 
to  the  defendant  for  the  same,  .  .  .  and  liable  to  make*"  good 
to  the  defendant  such  amount  as  he  should  have  to  return  to 
the  plaintiffs  under  the  charter-party ;  and  that  the  sum  paid  by 
the  defendant  to  the  plaintiffs,  or  received  by  them,  .  .  . 
would  be  the  damages  sustained  by  the  defendant  by  reason  of 
such  improper  conduct.  But  I  thinli  my  brother  Channell  has 
reheved  me  from  that  difficulty,  by  suggesting  that  it  is  a  mere 
conclusion  drawn  from  the  previous  allegations, —  not  a  conclu- 
sion of  law  necessarily  resulting  from  such  previous  allegations, 
one  which  a  jury  might  or  might  not  arrive  at.  I  think  that 
unless  the  judge  would  be  bound  to  tell  the  jury  that  the 
amount  which  the  defendant  claims  by  his  plea  is  necessarily 
the  same  amount  as  the  plaintiffs  claim  by  their  declaration,  the 
plea  does  not  bring  the  case  within  the  rule  as  to  circuity  of 
action.  The  case  differs  materially  from  those  which  were 
cited,  ...  in  which  tlie  defendant  was  bound  to  a  hqui- 
dated  and  ascertained  sum  on  the  failure  of  the  plaintiff  to  per- 
form a  duty.  This  is  a  matter  which  sounds  in  damages.  The 
plaintiffs  had  undertaken  to  effect  an  insurance  for  the  defend- 
ant with  third  persons ;  and  it  mai/  he  that  in  the  result  the  de- 
fendant will  be  entitled  to  recover  from  the  plaintiffs  precisely 
the  same  amount  of  damages  that  the  plaintiffs  will  recover  in 
this  action ;  but  there  are  various  circumstances  which  might 
by  possibihty  arise  to  reduce  the  damages  in  that  action  to  a 
lesser  or  even  to  a  nominal  amount ;  and  unless  the  defendant 
could  negative  all  these  possible  circumstances,  he  could  not 
make  this  a  good  plea.^ 

'  Charles  v.   Altin,    15   C.    B.   46.  meut,  and  I  must  confess  that  these 

Crowder,  J.,  doubted  in  this  case,  doubts  ai-e  not  altogether  removed; 

He  said:  "I  have  entertained  con-  and  although  my  lord  and  my  two 

Biderable  doubts  during  the  argu-  learned  brothers  think  otherwise,  it 


224 


LEGAL   LIQUIDATIONS    AND   KEDUCTIONS. 


The  reciprocal  obligations  of  the  parties  may  be  such  that  the 
action  of  one  may  be  barred  by  a  counter  covenant  which  is  not 
only  a  good  defense  on  the  ground  of  avoiding  circuity  of  action, 
but  also  as  a  release.  Of  this  nature  is  a  covenant  never  to  sue.^ 
To  sustain  a  bar  in  that  form,  however,  the  contract  must  be 
technically  such  as  to  amount  to  a  release.  But  the  defense  of 
circuity  of  action  does  not  depend  on  the  principle  of  a  release, 
but  on  the  policy  of  the  law  against  unnecessary  litigation,  and 
the  convenience  of  admitting  a  party  to  his  ultimate  right  by 
the  shortest  and  most  dhect  process. 

Section  2. 


MUTUAL  CREDIT. 


Only  the  net  balance  of  connected  accounts  recoverable. 

Mutual  debts  or  credits  do  not  compensate  each  other  except 
when  pleaded  under  statutes  of  set-off,  unless  they  are  so  con- 


is  with  considerable  reluctance  that 

1  should  come  to  the  conclusion  that 
the  plea  is  no  answer  to  the  declara- 
tion. The  rule  as  to  the  avoidance 
of  circuity  of  action  is  in  my  opin- 
ion a  just  and  valuable  one,  and  it 
is  important  that  a  case  should  be 
brought  within  it,  if  possible.  In 
point  of  fact  and  common  sense, 
nobody  can  doubt,  that,  if  these 
plaintiffs  recover  back  the  one-third 
freight  to-day,  and  the  defendant 
were  to  bring  a  cross  action  against 
them,  and  to  allege  and  prove  what 
is  stated  in  this  plea,  the  jury  would 
be  directed  to  give  damages  to  pre- 
cisely the  same  amount."  After 
quoting  the  language  of  Mr.  Justice 
Washington  in  Morris  v.  Summert, 

2  Wash.  C.  C.  203,  he  continued: 
"It  is  not  said  that,  as  a  positive 
m.atter  of  law,  he  is  responsible  to 
that  extent.  It  probably  amounts 
to  this,  tlaat  the  loss  would  be  the 
reasonable  measure  of  damages. 
The  learned  judge  is  referring  to  a 
course  of  dealing.  The  case  before 
us  arises  upon  a  contract  to  insure 


the  amount, —  thejyrecise  amount, — 
wliich  the  plaintiffs  are  claiming 
under  the  charter-party  to  have  re- 
turned to  them;  and  the  question  is 
wliether  the  breach  of  the  engage- 
ment to  insure  does  not  so  clearly 
entitle  the  defendant  to  recover  from 
the  plaintiffs  the  precise  sum  which 
they  by  their  action  are  seeking  to 
recover  from  him,  as  to  warrant  the 
plea.  If  this  had  been  a  contract  of 
indemnity,  there  could  have  been  no 
doubt."  Alston  v.  Herring,  11  Exch. 
822. 

'Smith  V.  Mapleback,  1  T.  R.  441; 
Johnson  v.  Can-e,  1  Lev.  152;  Har- 
vey V.  Harvey,  3  Ind.  473;  Reed  v. 
Shaw,  1  Blackf.  245;  Jackson  v. 
Stackliouse,  1  Cow.  122;  Phelps  v. 
Johnson,  8  John.  54;  Jones  v.  Quin- 
nipiac  Bank,  29  Conn.  25;  Walker  v. 
McCullock,  4  Greeulf.  421;  Lane  v. 
O wings,  3  Bibb,  247;  Hastings  v. 
Dickinson,  7  Mass.  153;  Upham  v. 
Smith,  7  Mass.  265;  Shed  v.  Pierce, 
17  Mass.  623;  Sewall  v.  Sparrow,  16 
Mass.  24. 


MUTUAL   CREDIT, 


225 


nectccl  that  tlie  parties  have  reciprocally  the  right  to  retain  out 
of  the  moneys  they  owe  the  amount  they  are  creditors  for. 
Then  the  accounts  are  reciprocal  payments,  and  no  demand  ex- 
ists upon  either  side  except  for  the  net  balance.  This  is  the 
case  where  the  demands  of  both  parties  are  with  their  mutual 
consent  brought  into  one  account  as  debit  and  credit ;  ^  and 
also,  wherever  a  party  has  a  lien  on  moneys  in  his  hands  or 
which  he  owes,  for  the  satisfaction  of  a  cross  demand  in  favor 
of  himself,  as  in  the  case  of  factors,  bankers  and  others.  In  an 
early  case,  a  ship  broker  recovered  for  his  principal  a  sum  of 
money  for  damages  done  to  his  ship  by  collision ;  the  broker 
paid  over  all  but  his  charges  for  services,  and  it  was  held  in  a 
suit  by  the  principal  for  the  sum  so  retained,  which  was  shown 
to  be  reasonable  in  amount,  that  the  defendant  had  a  right  to 
retain  it.  The  action  was  for  money  had  and  received,  and  it 
was  said  the  plaintiff  should  not  receive  more  than  he  was  in 
conscience  and  equity  entitled  to,  and  this  could  not  be  more 
than  wliat  remained  after  deducting  all  just  allowances  which 
the  defendant  was  entitled  to  out  of  the  very  sum  demanded ;  it 
was  not  in  the  nature  of  a  cross  demand  or  mutual  debt,  but  a 
charge  which  makes  the  sum  received  for  the  plaintiff's  use  so 
much  less.^ 

In  conformity  to  a  natural  equit}^  that  one  debt  shall  compen- 
sate another,  and  for  the  convenience  of  commerce,  the  courts 
favor  liens ;  and  recognize  them,  first,  where  there  is  an  express 
contract ;  second,  where  one  may  be  implied  from  the  usage  of 
trade ;  third,  where  it  may  be  implied  from  the  manner  of  deal- 
ing between  the  parties  in  the  particular  case ;  fourth,  where 
the  defendant  has  acted  in  the  capacity  of  a  factor.^  Where  it 
was  part  of  the  contract  between  a  servant  and  his  master  that 
the  former  should  pay  out  of  Ms  wages  the  value  of  his  master's 

•Bondv.  Qark,  47  Vt.  565;  McNeil  Miller    v.    Powder,   55    N.    Y.    325; 

V.  Garland,  27  Ark.  343;  Sauford  v.  Dresser  Manufg.  Co.  v.  Waterson,  3 

Clark,  29  Coun.  457;  Mj-ers  v.  Davis,  Met.  9;  Turpiu  v.  Reynolds,  14  La. 

26  Barb.  367;  Ang.  on  Lim.  §  138.  Ann.  473;  Holbrook  v.  Receivers,  6 

'Dale   V.    Sollel,  4   Burr.  2133;    1  Paige,  220;   see  Taft  v.  Aylwin,  14 

Chitty's  PI.  563;  Rawson  v.  Samuel,  Pick.  336;  see  also  Schermerliorn  v. 

1  Cr.  &  Ph.  161;  Green  v.  Farmer,  4  Anderson,  2   Barb.  584,  note;    Citi- 

Burr.  2214;  Patrick  v.  Hazen,  10  Vt.  zens"  Bank  v  Carson,  32  Mo.  191. 

183;  Saltus  v.  Everett,  20  Wend.  267;  ^  jj. 
Vol.  I  — 15 


226  LEGAL    LIQUIDATIONS    AND    KEDUCTIONS. 

goods  lost  by  his  negligence,  it  was  held  to  be  an  agreement 
that  the  wages  were  to  be  paid  only  after  deducting  the  value 
of  the  things  lost,  and  that  such  facts  were  provable  under  the 
general  issue. ^  So  where  by  the  custom  of  the  hat  trade,  the 
amount  of  injury  done  to  hats  in  dyeing  was  to  be  deducted 
from  the  dyer's  wages,  evidence  of  injury  from  this  cause  was 
admitted  in  reduction  of  damages.^ 

Section  3. 

mitigation  of  damages. 

First,  by  matters  which  tend  to  excuse  or  justify,  but  are  not  a  complete 
justification  —  Second,  acts  and  negligences  of  plaintiff  tvhlch  in- 
creased the  injury  —  Third,  acts  of  either  party,  or  of  third  persons, 
reducing  or  partially  compensating  the  original  or  prima  facie  in- 
jury —  Fourth,  by  fuller  proof  the  res  gestae  —  Fifth,  payments  before 
or  after  suit. 

Mitigation  of  damages  is  what  the  expression  imports,  a  re- 
duction of  the  amount  of  damages ;  not  by  proof  of  facts 
which  are  a  bar  to  a  part  of  the  plaintiff's  cause  of  action,  or  a 
justification,  nor  yet  of  facts  which  constitute  a  cause  of  action 
in  favor  of  the  defendant ;  but  rather  facts  which  show  that  the 
plaintiff's  conceded  cause  of  action  does  not  entitle  him  to  so 
large  an  amount  as  the  showing  on  his  side  would  otherwise 
justify  the  jury  in  allowing  him.     Facts  for  mitigation  are  ad- 

1  Le  Loir  V.  Bristow,  4  Camp.  134;  ruptcy.     Pollock,  C.  B.,  said:     "If 

Cheworth  v.  Peckford,  7  M.  &  W.  this  had  been  an  action  of  trover  for 

314,  the  bill,  no  doubt  it  would  have  been 

*Bamford  v.  Harris,  1  Stark.  343;  altogether  a  question  for  the  jury  as 

see  Alden  v.  Keighley,  15  M.  &  W.  to  the  amount  of  damages.    So,  also, 

119.     In  this  case  the  bankrupt  had  if  it  had  been  an  accommodation 

given  the  defendant  a  bill  drawn  by  bill,  or  the  bankrupt's  own  bill.    But 

himself  for  600Z.,  which  the  defend-  this  is  not  an  action  of  trover,  but  of 

ant   agreed    to    discount,  retaining  breach  of  contract.     The  defendant 

lOOZ.  and  the  discount.      He  never  promised  to  deliver  to  the  bankruj)t 

paid  the  bankrupt  anything.     The  the  amount  of  the  bill  minus  100?. 

action  was  brought  by  the  assignees  and  discount.     The  bankrupt  would 

for  bx'each  of  the  agreement.      The  have  to  receive  that  sum,  and  his 

jury  gave  a  verdict  for  495Z. ,  being  assignees  are  entitled  to  recover  the 

the  amount  of  the  bill  minus  the  same  amount  which  he  would  be 

lOOZ.  and  discount.     This  was  held  entitled  to  receive,  had  he  continued 

correct,  though  the  bill  had  become  solvent,  by  reason  of  the  breach  of 

•worthless  on  account  of  the  bank-  contract." 


MITIGAnON   OF   DAMAGES.  227 

dressed  to  the  equity  of  the  law,  and  are  admitted  to  assist  in 
the  application  of  that  paramount  rule,  that  damages  should 
not  exceed  just  compensation,  unless  the  case,  when  fully  dis- 
closed, calls  for  severity  in  the  form  of  exemplary  damages. 

1,  Matters  may  he  proved  in  mitigcution  wMch  tend  to  excuse 
or  justify  the  defendant'' s  act  complained  of  hut  are  not  a  full  ex- 
cuse  or  justification.  Thus  where  the  plaintiff  was  taken  into 
custody  for  an  offense  not  justifying  an  arrest,  evidence  of  the 
offense  was  allowed  to  be  given ;  for  it  was  in  the  nature  of  an 
apology  for  the  defendant's  conduct.^  In  trespass  for  false  im- 
prisomnent  the  void  warrant  of  arrest,  and  proceedings  had 
under  it,  are  admissible  in  evidence  to  disprove  malice,  and 
prevent  the  recovery  of  exemplary  damages,'^  but  not  to  miti- 
gate compensatory  damages.^ 

Although  it  is  well  settled  that  no  words  of  provocation 
whatever  will  justify  the  offended  party  in  inflicting  a  blow 
upon  the  offender,  they  will  constitute  an  excuse  which  will 
mitigate  the  damages,  and  may  be  proved  for  tliat  purpose.^ 
But  such  provocation  must  be  so  recent  as  to  induce  the  pre- 
sumption that  the  violence  was  committed  under  the  immediate 
influence  of  the  passion  thus  excited.^  The  language  of  the 
parties  is  often  so  intimately  associated  and  identified  with  the 
transaction,  that  it  is  impracticable  to  suppress  it  in  giving  evi- 
dence of  their  conduct ;  and,  indeed,  the  suppression  of  it,  if 
practicable,  would  only  tend  to  exhibit  the  transaction  by  false 
and  deceitful  colors.^  The  law  mercifully  makes  this  conces- 
sion to  the  weakness  and  infirmities  of  human  nature,  which 
subject  it  to  uncontrollable  influences  when  under  great  and 

'Linford  v.  Lake,  3  H.  &  N.  376;  Bride  v.  McLaughlin,  5  Watts,  375; 

Warwick  v.   Foucks,  12  M.   &  W.  Waters  v.  Brown,  3  A.  K.  Marsh. 

507;  WeUs  v.  Jackson,  3  Munf.  458;  557;  BaiTy  v.  Inghs,  Tay.  (N.  C.)  121; 

Paine  v.  Fan-,  118  Mass.  75.  Corning  v.  Coming,  2  Sekl.  97;  Cur- 

2  Warden  v.  McMillan,  38  Ala.  622;  rier  v.  Swan,  63  Me.  333;  Matthews 

Wells  V.  Jackson,  3  Munf.  458.  v.  Terry,  10  Conn.  455;  Delevan  v. 

^  Lewis  V.  Lewis,  9  Ind.  105.  Bates,   1  Mich.  97;  Salters  v,  Kipp, 

^Cushman  v,  Ryan,  1  Story,  91;  12  How.  Pr.  342. 

Avery  v.  Ray,  1  Mass.  12;  Lee  v.  '  Corning  v.  Corning,  supra;  Ells- 

Woolsey,  19  John.  319;  Maynard  v.  worth  v.  Thompson,  13  Wend.  658; 

Beardsley,  7  Wend.  560:  Rochester  BaiTy  v.  Inglis,  supra;  Rochester  v. 

V.  Anderson,  1  Bibb,  428;  McAlex-  Anderson,  supra, 

ander  v.  Harris,  6  Munf.  465;  Mc-  *Id. 


228  LEGAJL   LIQUIDATIONS   AND   EEDUCTIONS. 

maddening  excitement,  superinduced  by  insult  and  threats.  But 
it  wlioUy  discountenances  that  cruel  disposition  which  for  a  long 
time  broods  over  hastily  and  unguardedly  spoken  words,  and 
seeks,  when  opportunity  offers,  to  make  them  an  excuse  for  bru- 
tal behavior.     With  such  a  temper  it  has  no  sympathy.^ 

The  mitigating  effect  of  a  provocation  in  words  is  spent 
when  there  has  been  time  for  reflection,  and  for  the  passion  ex- 
cited by  it  to  cool.  Other  antecedent  facts,  however,  may  be 
proved  in  mitigation,  where  they  are  connected  with  the  acts 
complained  of,  and  afford  an  explanation  of  the  motives  and 
conduct  of  the  defendant,  and  show  him  less  culpable  than  he 
would  otherwise  appear.  Thus  where  the  injury  is  inflicted  in 
an  attempt  to  prevent  the  execution  of  previous  threats,  the  de- 
fendant may  prove  such  threats  in  mitigation  of  damages,  as 
conducing  to  shoAV  that  an  excusable  motive  governed  him,  as 
well  as  the  motives  with  which  the  other  acted  in  the  ren- 
counter,^ 

In  a  late  case  in  Maine,^  there  was  an  affray  between  the 
plaintiff  and  one  of  the  defendants  in  the  afternoon.  In  the 
evening  of  the  same  day  the  defendant  assaulted  the  plaintiff 
at  his  own  house.  It  Avas  held  that  the  defendants  might  show 
the  fact  of  an  affray  in  the  afternoon,  but  not  its  details,  in  mit- 
igation of  damages  for  the  last  assault,  Peters,  J.,  said :  "  It 
was  to  show  the  object  and  purpose  of  the  second  assault,  or 
the  state  of  mind  with  which  it  was  done.  Otherwise,  there 
would  have  been  nothing  to  indicate  to  the  jury  but  that  the 
house  was  entered  for  the  purpose  of  robbery  and  plunder,  or 
something  of  the  kind.  The  fact  of  the  previous  affray  might 
have  some  weight  on  the  question  of  the  amount  of  damages 
recoverable,  and  might  legitimately  be  regarded  as  part  of  the 
transaction  to  be  investigated  in  this  suit."  And  in  a  case  in 
"Wisconsin,*  it  was  held  in  an  action  for  an  injury  to  the  person, 
committed  in  an  affray,  that  evidence  offered  should  have  been 
received  that  the  plaintiff  for  several  years  had  frequently  tried 
to  provoke  a  quarrel  with  the  defendant,  and  on  various  occa- 

'  Gaither  v.  Blowers,  11   Md.  536,  ^  Currier  v.  Swan,  G3  Me,  323. 

2  Waters  V,  Brown,  3  A,  K.  Marsh.  ^  Fairbanks    v.    Witler,    18    Wis. 

557;  Rliodes  v.  Bunch,  3  McCord,  6G;  287. 
McKenzie  v.  Allen,  3  Strobh.  546. 


MITIGATION    OF    DAMAGES.  229 

sions  threatened  liis  life,  some  of  these  being  made  to  the 
defendant,  and  all  of  them  brought  to  his  knowledge  before  the 
occasion  in  question. 

The  defendant  may  show  that  the  parties  fought  by  agree- 
ment.^ Where  a  battery  proceeds  from  a  dispute  in  which  the 
parties  impugn  each  other's  veracity,  courts  have  differed  as  to 
whether  the  defendant  may  prove  in  mitigation  that  his  state- 
ment in  the  altercation  was  true.  Such  proof  has  been  excluded 
in  Indiana,^  but  in  Maryland  whore  the  parties  disputed,  and 
blows  ensued  from  questioning  each  other's  veracity,  the  de- 
fendant was  allowed  to  show  that  he  told  the  truth.^  Proof  by 
the  plaintiff,  in  aggravation  of  damages,  that  the  defendant 
threatened  to  beat  him  because  he  had  circulated  slanderous 
words  concerning  the  defendant,  does  not  entitle  the  defendant 
to  give  evidence  that  the  plaintiff  had  in  fact  circulated  the 
slander.* 

Some  question  has  been  raised  as  to  the  extent  to  which  dam- 
ages may  be  mitigated  by  proof  of  provocation  in  words. 
Judge  Story  said  tliey  might  reduce  the  damages  to  nominal 
when  "  very  gross  and  reprehensible  and  calculated  .from  the 
circumstances  to  draw  forth  strong  resentment."^  This  has 
sometimes  been  doubted,^  but  it  seems  to  be  supported  by  good 
sense  and  autliority.  When  the  vrrong  is  done  under  circum- 
stances arising  without  the  plaintiff's  fault,  and  these  furnish  a 
reasonable  excuse  for  the  violation  of  pubhc  order,  considering 
the  infirmities  of  human  temper,  there  is  no  foundation  for 
exemplary  damages,  but  the  plaintiff  is  entitled  to  compensa- 
tion. But  where  there  is  a  reasonable  excuse  for  the  violation 
of  public  order  arising  from  the  provocation  or  fault  of  the 
plaintiff,  but  not  sufficient  to  entu'ely  justify  the  wrong  done, 
there  can  be  no  exemplary  damages,  and  the  circumstances  of 
mitigation  must  be  apphed  to  the  act«al  damages.'' 

Dixon,  C.  J.,^  said :  "  This  seems  to  follow  as  the  necessary 
and  logical  result  of  the  rule  which  permits  exemplary  damages 

J  Adams  v.  Wagner,  32  Ind.  531.  "  Birchard  v.  Booth,  4  Wis.  6,  7. 

« Butts  V.  Gould,  U  Ind.  553.  '  Robison  v.  Rofert,  33  Pa.  St.  523; 

8  Marker  V.  Miller,  9  Md.  338.  Reed  v.  Bias,  8  W.  &  S.  189;  EUs- 

*  Rochester  v,  Anderson,  1  Bibb,  worth  v.  Thompson,  13  Wend.  663. 
428.  "  Moreley  v.  Dunbar,  24  Wis.  183. 

*  Cushman  v.  Ryan,  1  Story,  100, 


230 


LKQAT.    LIQUIDATIONS    AND    REDUCTIONS. 


to  be  recovered.  "Where  motive  constitutes  a  basis  for  increas- 
ing the  damages  of  the  plaintiff  above  those  actually  sustained, 
there  it  should,  under  proper  cu^cumstances,  constitute  the  basis 
for  reducing  them  below  the  same  standard.  If  the  malice  of 
the  defendant  is  to  be  punished  bj  the  imposition  of  additional 
damages,  or  smart  money,  then  malice  on  the  part  of  the  plaint- 
iff, by  which  he  provoked  the  injury  complained  of,  should  be 
subject  to  hke  punishment,  which,  in  his  case,  can  only  be  in- 
flicted by  withholding  the  damages  to  -which  he  would  other- 
wise be  entitled.  The  law  is  not  so  one-sided  as  to  scrutinize  the 
motives  and  punish  one  party  to  the  transaction  for  his  malicious 
conduct,  and  not  punish  the  other  for  the  same  thing ;  nor  so  un- 
wise as  not  to  make  an  allowance  for  the  infirmities  of  men, 
when  smarting  under  the  sting  of  gross  and  immediate  provoca- 
tion. If  it  were,  then,  as  has  been  well  said,  it  would  frequently 
happen  that  the  plaintiff  would  get  full  compensation  for  dam- 
ages occasioned  by  himself,  —  a  result  which  would  be  contrary 
to  every  principle  of  reason  and  justice.  And  so  I  find  the  unin- 
terrupted course  of  decisions  both  in  England  and  this  country."  ^ 


'  Citing  Robinson  v.  Rupert,  23  Pa. 
St.  523;  Fraser  v.  Berkeley,  7  C.  & 
P.  621;  Millard  v.  Brown,  35  N.  Y. 
297;  Finnerty  v.  Tipple,  2  Oamp.  72; 
Avery  v.  Ray,  1  Mass.  11;  Cuslmian 
V.  Ryan,  1  Story,  100;  Gaithers  v. 
Blowers,  11  Md.  551,  552;  Child  v. 
Homer,  13  Pick.  503;  Keyes  v.  Dev- 
lin, 3  E.  D.  Smith,  518;  Rochester  v. 
Anderson,  1  Bibb,  428;  Lee  v.  Wool- 
sey,  19  John.  319;  Barry  v.  Ingiis, 
Taylor  (N.  C),  121;  Ireland  v.  Elliott, 
5  Iowa,  478;  Maynard  v.  Beardsley, 
7  Wend.  560;  Waters  v.  Brown,  3  A. 
K.  Marsh.  557;  Prentiss  v.  Sl»w,  56 
Me.  427;  Rhodes  v.  Bunch,  3  McCord, 
65;  McKenziev.  Allen,  3  Strobh.  546; 
Matthews  v,  Terry,  10  Conn.  459; 
Cox  V.  Whitney,  9  Mo.  531;  Collins 
V.  Todd,  17  Mo.  539;  Corning  v.  Corn- 
ing, 6  N.  Y.  103;  Willis  v.  Forest,  2 
Duer,  318;  Tyson  v.  Booth,  100  Mass. 
258;  Marker  v.  Miller,  9  Md.  338; 
Bingham  v.  Garnhault,  Buller's  N. 
P.  17.     In  Wilson  v.  Young,  32  Wis. 


574,  the  subject  was  again  under  dis- 
cussion, and  a  majority  of  the  court 
held  to  a  middle  ground  between  the 
doctrine  of  Birchard  v.  Booth  and 
Moreley  v.  Dunbar  —  that  in  an 
action  for  assault  and  battery,  com- 
pensatory as  distinguished  from 
punitive  damages,  are  of  two  kinds: 
1.  Those  which  may  be  recovei'ed  for 
the  actual,  personal  or  pecuniary  in- 
jury and  loss;  the  elements  of  which, 
are,  loss  of  time,  bodily  suffering, 
impaired  physical  or  mental  powers, 
mutilation  and  disfigurement,  ex- 
penses of  surgical  and  other  attend- 
ance, and  the  like.  2.  Those  wliich 
may  be  recovered  for  injuries  to  the 
feelings  arising  from  the  insult  or  in- 
dignity, the  public  exposure  and  con- 
tumely, and  the  hke.  That  compen- 
satory damages  of  the  first  kind  are 
to  be  determined  without  reference 
to  the  question  whether  the  defend- 
ant was  influenced  by  mahcious  mo- 
tives in  the  act  complained  of;  and, 


MITIGATION    OF    DAMAGES.  231 

Immediately  after  the  late  civil  war  the  plaintiff,  having  pub- 
licly and  indecently  exulted  over  the  assassination  of  President 
Lincoln,  was  arrested  pursuant  to  a  general  order  of  the  de- 
fendant, who  commanded  a  mihtary  department.  The  order  was 
illegal,  but  was  issued  without  niahce,  and  was  intended  as  a 
means  of  preserving  the  public  peace.  The  plaintiff  was  held 
not  entitled  to  exemplary  damages  for  his  arrest  and  imprison- 
ment. But  having  been  manacled  and  compelled  to  labor  with 
other  prisoners  during  the  time  he  was  held  in  custody,  these 
circumstances  were  held  to  be  good  ground  for  enhancement  of 
the  damages.^ 

In  actions  for  hbel  or  verbal  slander,  it  may  also  be  proved  in 
mitigation  that  there  was  an  immediate  provocation  in  the  acts 
and  declarations  of  the  plaintiff."^  The  defendant  cannot,  how- 
ever, prove  such  acts  and  declarations  done  or  made  at  a  differ- 
ent time,  or  any  antecedent  facts  which  are  not  fairly  to  be 
considered  part  of  the  same  transaction,  however  irritating  and 
provoking  they  may  be.^  It  has  been  held  that  a  criminatory 
retort  made  after  three  days  is  not  part  of  the  same  transac- 
tion, nor  when  it  has  no  relation  to  the  previous  pubhcation, 
and  there  is  no  perceptible  connection  between  them.*    It  has 


on    the    other    hand,    evidence    of  etc.  R.  R.  Co.  67  K  Y.  100;  Jacobs  v. 
threatening  or  aggravating  language  Hoover,  9  Minn.  204;  McBride  v.  Mo- 
or malicious  conduct  on  the  plaint-  Laughlin,  5  Watts,  375. 
iff's  part,  not  constituting  a    legal  '  McCall  v.  McDowell,  Deady,  233; 
justification  of  the  defendant's  acts.  Roth  v.  Smith,  54  111.  431. 
-cannot  be  considered  in  mitigation  '^  Miles  v.  Harrington,  8  Kan.  425; 
of    such    damages.     That    compen-  Jauch  v.  Jauch,  50  Ind.  135;  Beards- 
satory  damages  of  the  second  kind  ley  v.  Maynard,  4  Wend.  336;  Moore 
depend  entirely  upon  the  malice  of  v.  Clay,  24  Ala.  235;  Powers  v.  Pres- 
the  defendant;  and  as  evidence  of  groves,  38  Miss.  227;  McClintock  v. 
such  malice  may  be  given  to  increase  Crick,     4    Iowa,    453;    Duncan    v, 
that  kind  of  damages,  so  evidence  of  Brown,  15  B.  Mon.  186;  Ranger  v. 
threatening  and  malicious  words  or  Goodrich,     17    Wis.    78;    Freeman 
acts  on  the  plaintiff's  part,  just  pre-  v.  Tinsley,   50  111.   497;  Mousler  v. 
vious  to  the  assault,  though  not  con-  Harding,  33  Ind.  176. 
stituting  a  legal  justification,  should  ^  Lee  v.  Woolsey,  19  John.  319. 
be  admitted  to  mitigate  or  even  de-  '' Beardsley  v.  Maynard,  supra;  see 
feat  such  damages.     The  distinction  Graves    v.   Tlie    State,    9   Ala.  448; 
above  made  between  one  kind  of  Maynard  v.  Beardsley,  7  Wend.  560; 
x;ompensatory  damages  and  another,  Lester  v.  Wright,  2  Hill,    320;   Un- 
overruledin  Cracker  v.  Chicago,  etc.  derhill  v.  Taylor,  2  Barb.  343;  Rich- 
R.  R.  Co.  36  Wis.  657.     See  Cushman  ardson  v.  Northrop,  56  Barb.  105. 
^.  Wadell,  1  Bald.  57;  Yates  v.  N.  Y. 


232  LEGAL   LIQriDATIOXS    AND   EEDUCTIONS. 

also  been  held  that  where  a  party  is  sued  for  repubhshing  a 
hbelous  article  in  a  newspaper,  and  the  republication  is  accom- 
panied by  remarks  tending  to  a  justification  of  the  article,  but 
not  amounting  to  it,  the  defendant  is  not  permitted  to  prove  the 
truth  of  the  remarks  in  mitigation  of  damages,  because  the  evi- 
dence would  tend  to  prove  the  charge  well  founded.  And  that 
evidence  in  mitigation  must  be  such  as  admits  the  charge  to  be 
false.^  The  defendant  may  show  that  he  was  drunk  or  insane 
when  he  spoke  the  words.^ 

Upon  general  principles,  the  general  issue  in  an  action  on  the 
case  for  slander,  would  put  in  issue  not  only  the  speaking  of 
the  slanderous  words,  but  their  alleged  falsity  and  the  malice. 
The  early  adjudications  Avere  in  harmony  with  this  view,  but 
upon  consultation  of  the  judges  in  England  about  one  hundred 
and  fifty  years  ago,  it  was  resolved  that  in  the  future,  if  the  de- 
fendant intend  to  justify,  he  shall  plead  his  justification,  that  the 
plaintiff  may  know  what  he  has  to  meet.^  The  rule  thus  promul- 
gated has  ever  since  prevailed  in  England,  and  has  also  been  fol- 
lowed in  this  country/  It  has  also  ensued  that  under  the  general 
issue  in  such  actions,  the  defendant  cannot  prove  the  truth  of  the 
words  spoken  either  to  rebut  maUce  or  mitigate  damages.^  It 
has  been  deemed  as  important  that  the  plaintiff  should  have 
notice  that  the  truth  of  the  words  is  intended  to  be  proved 
when  the  object  is  mitigation  of  damages,  as  when  the  proof  is 
intended  for  any  other  object.^ 

In  some  jurisdictions,  therefore,  the  defendant  has  been  pre- 
cluded from  all  proof,  under  the  general  issue,  wliich  implies  the 

'  Cooper  V.  Barber,  24  Wend.  105.  v.  Andrews,  6  Barb.  43;  Shirley  v. 

2  Howell  V.  Howell,  10  Wend.  84;  Keathj^  4  Cold.  39;  Burns  v.  Webb, 

Gates  V.  Meridith,  7  Ind.  440;  Hutts  1  Tyler  (Vt.),  17;  Updegrove  v.  Zim- 

V.  Hutts,  52  Ind.  581.  merman,    13  Pa.    St.    619;    Root   v. 

2  Underwood  v.  Parker,  Strange,  King,  7  Cow.  613;  Swift  v.   Decker- 

1200.  man,  30  Conn.  285. 

^BodweU  V.  Swan,  3  Pick.    376;         ^  Knight  v.  Foster,  39  N.  H.  476; 

Wright  V.  Foster,  39  N.  H.  576;  Tay-  Bailey  v.  Hyde,  3  Conn.  463;  Swift 

lorv.  Robinson,  29  Me.  323;  Kay  v.  v.  Dickerman,    31   Conn.    291;    An- 

Fredrigal,  3  Pa.    St.   221;  Jarnigan  drews  v.   Vandusen,    11    John.    38; 

V.  Fleming,  43  Miss.  710;  Donge  v.  Shepard  v.  Merrill,  13  John.  475. 
Pierce,    13    Ala.     127;     Henson    v,  «Wolcott  v.    Hall,    6    Mass.    514; 

Veatch,  1   Blatchf.  369;  Gilman  v.  Jarnigan  y.   Fleming,  43  Miss.  710;. 

LoweU,  8  Wend.  573;  Wagstaff  v.  Treat  v.  Browning,  4  Conn.  408. 
Ashton,  1  Harr.  (Del.)  503;  Snyder 


MITIGATION    OF    D^UIAGES.  233 

truth  of  the  charge  or  tends  to  prove  it.^  To  get  the  opportu- 
nity to  adduce  any  such  proof,  he  was  required  to  plead  the  truth 
of  the  words  as  a  justification ;  then  if  he  succeeded  he  was 
exonerated  from  all  hability ;  but  if  he  failed,  the  plea  being  a 
repetition  of  the  defamatory  words,  aggravated  the  damages, 
for  malice  was  conclusively  presumed.^  In  New  York  by  such 
a  plea,  not  sustained,  the  defendant  was  held  to  admit  the 
malice  on  his  part,  and  that  he  could  not  resort  to  any  defense 
based  on  the  absence  of  mahce.^  While  he  had  teclinicaUy  a 
right  to  introduce  evidence  in  mitigation,  still  without  a  plea  of 
justification,  he  could  introduce  no  facts  which  would  show  that 
he  had  good  reason  to  believe  the  charge  to  be  true  when  the 
words  were  spoken,  and  if  he  put  in  the  only  plea  which  would 
give  him  a  right  to  introduce  such  proof,  he  lost  the  benefit  of 
it  by  the  stubborn  presumption  of  malice,  unless  his  proof  was 
sufficient  to  estabhsh  the  truth  of  the  charge.  There  was  there- 
fore very  little  scope  for  mitigation  in  that  class  of  actions.* 

The  injustice  of  such  a  rule  induced  the  courts  in  some  of  the 
states,  as  well  as  in  England,  to  admit  proof  of  facts  and  circum- 
stances tending  to  show  the  truth  of  the  words  spoken,  but  fall- 
ing short  of  proving  it ;  in  other  words,  the  defendant  might 
show  that  he  had  reason  to  beheve,  when  he  uttered  the  words, 
that  they  were  true.^    Under  this  rule,  it  has  been  allowed  to  be 

'Gilman  v.  Lowell,  8  Wend.  573;         ^See  Busli  v.  Prosser,  11  N".  Y.  347; 

Knight    V.    Foster,    39    N.    H.    576;  Bisby  v.  Shaw,  12  N.  Y.  67. 
Meyer  v.  Pine,  4  Mich.  409;  Regnier         ^Knobell  v.  Fuller,  Norris'  Peake 

V.  Cabot,  7  111.  34;  McAlexander  v.  Add.  Cas.  33; v.  Moore,  IM.  & 

Harris,  6  Munf.  465;  Porter  v.  Bot-  Sel.  285 ;  Leicester  v.  Walter,  3  Camp 

kins,  59  Pa.  St.  484;  Chamberlain  v.  251;  East  v.  Chapman,  3   C.  &    P 

Vance,  51  Cal.  75;  Pease  v.  Shippen,  57O;  Bailey  v.   Hyde,   3  Conn.  463 

BOPa.  St.  513;  Wormouthv.  Cramer,  Bridgman  v.   Hopkins,  34  Vt.  533 

3  Wend.   395;  McGee  v.  Sandusky,  Williams    v.   Minor,    18    Conn.  464 

5  J.  J.  Marsh.  185.  Haywood    v.    Foster,    16    Ohio,   88 

«Id.;  Gorman  v.  Sutton,  33  Pa.  St.  Wagner  v.  Holbruuner,  7  Gill,  295 

247;  Lamed  v.  Buffington,   3  Mass.  Huson  v.  Dale,  19  Mich.  17;  Rigdon 

546;  Robinson  V.  Drummond,  24  Ala.  v.  Walcott,  6  Gill   &   J.  413;  Morris 

174;   Pool   V.    Divers,  30    Ala.    673;  v.  Barker,  4  Harr.  (Del.)  530;  Gallo- 

Downing  v.   Brown,   3  Col.  T.   571;  way  v.  Courtney,  10  Rich.  414;  WiU- 

Cavanaugh  v.  Austin,  42  Vt.  576.  lams   v.  Cawley,  18  Ala.  206;  Brown 

^  Gilman  V.  Lowell,  supra;  Purple  v.    Brooks,    3   Ind.    518;    Wilson  v. 

V.  Norton,  13  Wend.  9;  Fero  v.  Rus-  Apple,  3  Oliio,   270;  Menessinger  v. 

coe,  4  Comst.  173.  Kerr,  9  Pa.   St.  312;  Van  Dusen  v. 


234 


LEG^U:.    LIQUIDATIONS    AND    KEDUCTIONS. 


proved  that  there  were  reports  in  the  neighborhood  that  the 
plaintiff  had  been  guilty  of  practices  similar  to  those  imputed 
to  him/  or  tiiat  general  reports  that  he  was  guilty  of  the  very 
offense  were,  previously  to  the  speaking  of  the  words,  in  circu- 
lation.''^ But  the  defendant  to  mitigate  damages  and  repel  the 
presumption  of  mahce  cannot  give  in  evidence  facts  of  which 
he  was  ignorant  at  the  time  of  uttering  the  words  complained 
of.^  E"or  is  the  fact  that  reports  that  the  plaintiff  was  guilty 
of  the  offense  imputed  to  him  were  in  circulation,  prior  to  the 
uttering  of  the  words,  generally  admitted,  in  mitigation,  by 
courts  which  permit  proof,  not  amounting  to  justification,  tend- 
ing to  show  the  truth  of  the  words  spoken.''  The  general  char- 
acter of  the  plaintiff  at  the  time  the  defamatory  words  were 
spoken,  is  uniformly  deemed  in  issue,  for  it  is  the  foundation  of 
his  claim  for  damages  ;  and  he  is  at  all  times,  without  special 
notice  in  the  pleadings,  supposed  to  be  prepared  to  sustain  it 
against  any  attack.^ 

It  is  held  in  Michigan  that  where  only  the  general  issue  is 
pleaded,  and  evidence  is  offered  in  mitigation  of  damages,  tend- 
ing to  show  the  truth  of  the  words  spoken,  the  offer  conclu- 
sively admits  that  the  charge  was  false,  though  at  the  time  the 
defendant  made  it  he  beheved  it  to  be  true.     Such  an  offer,  un- 


Sulphin,    5    Ohio   St.    293;  Farr    v. 
Rasco,  9  Mich.  353. 

' V.  Moore,  1  Maul.  &  S.  285. 

=  Calloway  v.  Middleton,  2  A.  K. 
Marsh.   872;  Kennedy  v.  Gregory,  1 
Binn.  85;  Treat  v.  Browning,  4  Conn. 
408;  Case  v.   Marks,  20    Conn.  248 
Bridgman  v.    Hopkins,  34  Vt.  532 
Blekenstaff  v.  Perrin,   27  Ind.  527 
Morris  v.  Barker,  4  Harr.  (Del.)  520 
Henson    v.    Vetch,    1    Blackf.   3G9 
Church    V.    Bridgman,   6    Mo.    190 
Easterwood    v.    Quin,    2    Brev.    64 
Shilling  V.  Carson,  27  Md.  175;  Cook 
V.     Barkley,     1     Pennington,    1G9; 
Wetherbee  v.  Marsh,  20  N.  H.  561; 
Bowen  v.  Hall,  20  Vt.  232;  Fletcher 
V.  Burroughs,  10  Iowa,  557;  Sheehan 
V.  Collins,  20  111.  325. 

8  Bailey  v.  Hyde,  3  Conn.  463. 


^Anthony  v.  Stephens,  1  Mo.  254; 
Fisher  v.  Patterson,  14  Ohio,  418; 
Wilson  V.  Fitch,  41  Cal.  363;  Bush 
V.  Prosser,  11  N.  Y.  347,  361;  see 
Bowen  v.  Hall,  20  Vt.  232. 

«Buford  V.  McTuney,  1  Nott.  & 
McCord,  268;  Sawyer  v.  Eifert,  2 
Nott.  &  McCord,  511;  Douglass  v. 
Touse,  2  Wend.  352;  Hamer  v. 
McFarlan,  4  Denio,  509;  Pallett  v. 
Sargent,  36  N.  H.  498;  Sanders  v. 
Johnson,  6  Blackf.  53;  Rhodes  v. 
Ijams,  7  Ala.  544;  Walcott  v.  Hall, 
6  Mass.  514;  Moyer  v.  Moyer,  49  Pa. 
St.  210;  Alderman  v.  French,  1  Pick. 
1;  Bod  well  v.  Swan,  3  Pick.  376; 
McNatt  V.  Young,  8  Leigh,  542; 
DeWitt  V.  Greenfield,  5  Ohio,  225; 
Fitzgerald  v.  Stewart,  53  Pa.  St.  343; 
Powers  V.  Presgroves,  38  Miss.  227. 


\ 


MITIGATIOX   OF    DAMAGES.  235 

der  siicli  pleadings,  should  be  treated  as  involving  a  disclaimer  of 
the  truth  of  the  words,  and  a  conclusive  admission  that  they 
were  not  true  ;  but  not  as  inconsistent  vv^ith  the  idea  that  the 
defendant,  at  the  time  he  uttered  them,  may  have  beheved 
them  to  be  true.  lie  therefore  has  a  right  to  introduce  any 
facts  and  circumstances  tending  to  show  grounds  for  such  be- 
lief at  the  time  of  the  speaking  of  the  words.^  The  same  doc- 
trine is  held  in  Ohio.  The  whole  reason  for  the  rule  for 
admitting  such  evidence  is  to  relieve  the  defendant  from  the 
consequences  which  attach  to  malice  in  the  speaking  of  the 
words.  He  may  show  particular  acts  of  the  plaintiff  which  un- 
explained gave  him  a  just  reason  to  believe  the  truth  of  the 
declarations  which  he  uttered  ;  but  when  explained  and  under- 
stood, may  be  found  to  be  compatible  with  the  plaintiff's  inno- 
cence. It  is  permitted  upon  the  ground  that  the  proof  when 
introduced  may  serve  to  show  that  the  defendant,  in  making 
the  charge,  was  mistaken ;  that  he  misconstrued  the  act  or  con- 
duct of  the  party  by  supposing  it  to  be  criminal,  while,  in  fact, 
it  was  not.  When  the  testimony  can  have  no  other  effect  than 
to  make  apparent  the  plaintiff's  guilt,  and  prove  the  truth  of  the 
words  spoken,  its  introduction  to  the  jury  must  tend  to  justify 
the  speaking,  and  not  to  mitigate  damages,  by  showing  the  ab- 
sence of  mahce.  To  be  competent  for  the  former  purpose, 
the  facts  relied  on  must  be  pleaded  speciall}^,  and  cannot  be 
given  in  evidence  under  the  general  issue.^ 

The  rule  has  Ijeen  far  from  universal  that  a  plea  of  justifica- 
tion, not  sustained,  shall  in  all  cases  be  deemed  proof  of  mahce, 
or  have  the  effect  to  exclude  evidence  of  the  absence  of  mahce. 
"Where  such  a  plea  is  interposed  without  any  expectation  of  sus- 
taining it,  there  is  no  reason  why  such  deliberate  repetition  of 
the  slander  should  not  be  taken  into  consideration  in  the  assess- 
ment of  damages.  But  it  has  not  been  deemed  just  to  hamper 
a  honajide  defense  with  the  hazard  of  such  a  consequence  as 
matter  of  law.  Perley,  C.  J.,  said :  "  If  he  beheved,  when  he 
spoke  the  words,  that  they  were  true,  and  makes  a  hona  fide 
defense  to  the  action  under  the  plea   of  justification,  we  do 

1  Huson  V.  Dale,  19  Mich.  17.  Witt  v.  Greenfield,  5  Ohio,  235;  Hay- 

« Reynolds  v.  Tucker,  6  Ohio  St.      wood  v.  Foster,  16  Ohio,  88. 
516;  Wilson  v.  Apple,  3  Ohio,  270;  De 


236  LEGAL   LIQUIDATIONS    AND   KEDUCTIONS. 

not  see  why  lie  slioulcl  make  it  under  the  penalty  of  being 
punished  by  increased  damages,  if  he  should  fail  to  satisfy 
the  jmy  of  the  fact,  any  more  than  in  other  cases  where  a  de- 
fendant does  not  succeed  in  a  IjO'na  fide  defense.  We  think  it 
should  be  left  to  the  jury  to  decide  the  weight  and  character  of 
the  evidence  introduced  in  support  of  the  plea,  and  the  manner 
and  spirit  in  which  the  defense  is  conducted ;  whether  the  real 
object  of  the  plea  and  evidence  was  to  defend  the  action  with 
reasonable  expectation  of  success,  or  to  repeat  the  original 
slander."  ^ 

These  principles  have  now  been  established  by  statute  in 
many  of  the  states  Avhere  the  harsher  rule  formerly  prevailed. 
In  ISTew  York,  as  well  as  in  many  other  states  and  territories 
having  the  code,  it  is  provided  by  statute  that  the  defendant 
may,  in  his  answer,  allege  both  the  truth  of  the  matter  charged 
as  defamatory,  and  any  mitigating  circumstances  to  reduce  the 
amount  of  damages  ;  and  whether  he  prove  the  justification  or 
not,  he  may  give  in  evidence  the  mitigating  circumstances.  It 
is  held  that  this  statute  does  not  mean  that  he  must  connect 
them  together ;  that  he  cannot  allege  one  without  the  other  ;  but 
that  he  should  not  be  prohibited  from  alleging  either ;  accord- 
ingly the  defendant,  without  pleading  the  truth  of  the  words 
spoken,  may  allege  facts  tending  to  establish  their  truth  and 
prove  them  in  mitigation.^ 

In  trespass  for  levying  on  the  plaintiff's  property  under  an 
execution  against  a  third  party,  the  defendant  may  show  in- 
mitigation  of  damages  on  a  writ  of  inquuy,  after  judgment  by 
default,  that,  at  and  prior  to  the  levy,  the  property  was  in  pos- 
session of  the  defendant ;  or  that  the  plaintiff  was  not  the 
owner ;  but  is  estopped  by  the  judgment  from  showing  that  the 
plaintiff  had  not  such  interest  as  would  entitle  him  to  maintain 
the  suit.^ 

Where  a  building  was  blown  up  to  stay  the  progress  of  a  coii- 

iPallett  V.  Sargent,  86  N.  H.  499;  Corbley  v.  Wilson,  71  111.  309;  Ray- 

Byi-kett  v.  Monolian,  7  Blackf.  83;  ner  v.  Kenney,  14  Ohio  St.  283. 

Chalmers  V.  Shackell,  6  C.  &  P.  475;  ^"Bvish.  v.    Prosser,  11  N.  Y.  347; 

Sanders  v.  Johnson,  6  Blackf.   50;  Bisby  v.  Shaw,  13  N.  Y.  67. 

Thomas    v.    Dunaway,   30  III.    373;  ^Sterrett  v.  Raster,  37  Ala.   366; 

Cummerford  V.  McAvoy,  15  111.  311;  Squire  v.  HoUenbeck,  9  Pick.   551; 

City  of  Lowell  v.  Parker,  10  Met.  309. 


MITIGATION    OF    DAMAGES.  237 

flagration,  but  witliout  authority,  this  fact  was  allowed  to  be 
shown;  and  the  jury  in  estimating  the  damages,  it  Ava^  held, 
should  consider  the  circumstances  under  which  the  building  and 
its  contents  were,  and  their  chance  of  being  saved,  even  though 
not  at  the  time  on  fire ;  and  should  determine  the  damages  with 
reference  to  the  peril  to  which  they  were  exposed.^  So  if  a 
landlord  enters  to  make  repairs  which  are  necessary,  and  which 
the  tenant  ought  to  have  made,  but  neglected  to  make ;  or  if  he 
enters  to  make  repairs  which  he  is  bound  to  make,  but  which 
the  tenant  forbids  him  to  make ;  the  damages  will  bo  esthnated 
with  reference  to  these  circumstances,  and  wiU  be  less  than  if 
the  entry  were  made  without  color  of  excuse.^ 

A  person  sued  for  entering  and  cutting  down  trees  on  the 
plaintiff's  land  may  show  in  mitigation  a  verbal  hcense  from  the 
plaintiff ;  ^  or  when  sued  for  breach  of  a  contract,  that  perform- 
ance would  have  been  useless  to  the  plaintiff/  In  actions  for 
false  imprisonment  or  malicious  prosecution,  the  fact  that  the 
defendant  acted  under  instructions  of  his  employer  wiU  not 
mitigate  damages.^  The  advice  of  counsel,  if  given  Ijona  fide, 
is  a  cu^cmnstance  which  may  be  considered  in  mitigation,  to 
disprove  malice  or  to  mitigate  exemplary  damages.® 

2.  The  acts  and  negligences  of  the  plaintiff  which  have  en- 
hanced the  injury  resulting  from  the  defendants  act  complained 
<f,  may  he  shown  in  mitigation  of  damages. 

The  defendant  is  hable  for  the  natural  and  proximate  conse- 
quences of  his  violations  of  contract,  and  of  his  wrongful  acts ; 
but  if  the  plaintiff  has  rendered  these  consequences  more  severe 
to  himself  by  some  voluntary  act  which  it  was  his  duty  to  re- 
frain from ;  or  if  by  his  neglect  to  exert  himself  seasonably  to 
limit  the  injury  and  prevent  damage,  in  the  cases  in  which  the 
law  imposes  that  duty,  and  thereby  he  suffers  additional  injury 
from  the  defendant's  act  which  he  complains  of,  evidence  is  ad- 
missible in  mitigation,  to  ascertain  to  what  extent  the  damages 
clauned  are  to  be  attributed  to  such  acts  or  omissions  of  the 

'Parsons  v.  Pettingill,  11   Allen,  ■•  Canal  Co.  v.  Rowan,  4  Dana,  606. 

507  ;  Reed  v.  Bias,  8  W.  &  S.  190;  see  *  Josselyn  v.   McAUister,  23  Mich. 

Workman    v.  Great    Northern  Ry  300. 

Co.  32  L.  J.  Q.  B.  279.  « Fox  v.  Davis,  55  Ga.  298;  Bohen 

"■  Reeder  v.  Purdy,  41  111.  279,  v.  Dunphy,  1  Mon.  T.  333. 

3  Wallace  v.  Goodall,  18  N.  H.  439. 


238  LEGAL    LIQUIDATIONS    A^D   REDUCTIONS. 

plaintiff.  If  the  plaintiff  omit  to  use  his  opportunities,  and  does 
not  reasonably  exert  himself  to  lessen  the  damages  which  may 
result  from  the  defendant's  act,  he  is  not  entitled  to  compensa- 
tion for  the  injury  which  he  might  and  ought  to  have  prevented, 
except  to  the  extent  of  proper  compensation  for  such  measures 
or  acts  of  prevention  as  the  case  required  and  were  within  his 
loiowledge  and  power.^  This  subject  has  already  been  discussed 
at  some  length,  and  it  is  not  necessary  now  to  enlarge  upon  it.^ 

3.  Acts  of  the  ]?laintiff^  or  defendant,  or,  in  some  cases,  of 
third  persons,  hy  lohich  the  frhna  facie  loss  or  injury  from  the 
act  complained  of  has  heen  reduced  or  partially  compensated,  may 
he  shown  in  reduction  of  damages. 

Measures  of  prevention  taken  by  the  plaintiff  to  prevent  loss 
or  to  avert  some  of  the  consequences  of  the  wrong  complained 
of,  and  which  have  had  an  amehoratin*g  effect,  may  be  proved ; 
and  the  damages  will  be  mitigated,  according  to  the  particular 
facts,  to  the  actual  loss.  Where  goods  have  been  taken  from 
the  owner,  and  sold  by  an  officer  who  cannot  justify  for  want 
of  a  plea,  or  because  his  writ  would  not  avail  for  that  purpose, 
such  officer,  or  any  person  hable  for  his  tort,  may  show  that  the 
plaintiff  bought  the  goods  at  the  tortious  sale  for  less  than  their 
value.^ 

'Miller    v.    Mariners'    Church,    7  109  Mass.  197;  True  v.  International 

Greenlf.  51  ;Mathen  v.  Butler  County,  Tel.  Co.  60  Me.  9;  Reynolds  v.  Chan- 

28  Iowa,  250:  The  Cincinnati,  etc.  R.  dler  R,  Co.  43  Me.  513;  Grindle  v. 

R.  Co.  V.  Rodgers,  24  Ind.  103;  May-  Eastern    Express    Co.   67    Me.    317; 

nard  v.  Maynard,  49  Vt.  297;  Arden  Luce    v.   Jones,    39    N.    J.    L.    707; 

V.  Goodacre,  11  C.  B.  371;  Howard  United  States  v.  Smith,  4  Otto,  214; 

V.  Daly,  61  N.   Y.  362;   Sutherland  Beymer  v.  McBride,  37  Iowa,  114; 

V.  Myer,  67  Me.  64;  Williams  v.  Chi-  La  Blanche  v.  London,  etc.  R'y  Co. 

cago  Coal  Co.  60  111.  149;  Heavilon  1  C.  P.   D.  286;  Hamlin  v.  Great  N. 

V.  Kramer,  31  Ind.  24;  Benziger  v.  R'y  Co.   1  H.   &  N.  408;    Smeed  v. 

Miller,  50  Ala.  206;    Dunn  v.  John-  Foord,  1  E.  &  E.  602. 

son,  33  Ind.  54;  Keyes  v.  Westei'n  ^  See  ante,  p.  148. 

Vt.    Slate  Co.  34  Vt.    81;    Cook  v.  ^  Forsyth  v.  Palmer,  14  Pa.  St.  69; 

Soule,  56  N.   Y.  420;    Campbell  v.  Murray  v.   Burlmg,    10  John.    175; 

Mittenberger,  26  La.  Ann.  72:  Par-  Baker  v.  Freeman,  9  Wend.  36;  Ford 

sons  V.  Sutton,  66  N.  Y.  92;  Milton  v.  Williams,  24  N.  Y.  359;  Baldwin 

V.  Hudson  R.  &  C.  Co.  37  N.  Y.  210;  v.  Porter,  12  Conn.  473;  Hurlburt  v. 

Fisher  v.  Richards,  9  Oliio  St.  495;  Green,  41  Vt.  490;  Mclnroy  v.  Dyer, 

Dobbins  v.  Duquid,  65  111.  464;  Bur-  47  Pa.  St.  118:Tamvaco  v.  Simpson, 

ton  V.  Fay,  64  111.  417;   Hayden  v.  1  H.  &  R.  374;  Kaley  v.    Shed,   10 

Cabot,  17  Mass.  169;  Emery  v.  Lavel,  Met.  317;  Sprague  v.  Brown,  40  Wis. 


MITIGATIOX    OF   DAilAGES.  239 

Wherever  tlie  owner  gets  back  his  property  after  any  wrong- 
ful taking  or  detention,  the  expense  of  procuring  its  return  is 
the  measure  of  damages,  in  the  absence  of  special  damages, 
and  where  the  property  itself  has  not  been  injured  nor  dimin- 
ished in  value.  In  other  words,  the  wrongdoer  is  prima  facie 
liable  for  the  value  of  property  at  the  time  he  tortiously  took 
it,  or  converted  it,  with  interest ;  but  if  it  has  been  returned  and 
accepted  by  the  owner,  its  value  when  returned,  or  if  the 
owner  has  incurred  expense  to  recover  it,  then  its  value,  less 
such  expense,  will  be  deducted  by  way  of  mitigation  from  the 
amount  which  would  otherwise  be  the  measure  of  damages.^ 
Where  one  recovers  his  property  again,  which  had  been  unlaw- 
fully taken  from  him,  he  is  considered  as  having  received  it  in 
mitigation  of  damages,  upon  the  principle  that  he  has  thereby 
received  partial  compensation  for  the  injury  suffered.^  In  an 
action  of  trespass  for  goods  taken  and  carried  away,  it  appeared 
that  the  plaintiff,  before  bringing  the  action,  had  demanded  a 
return  of  the  goods,  and  the  defendant  had  promised  to  return 
them ;  but  while  preparing  to  do  so,  they  were  attached  on  a 
writ  against  the  plaintiff  ;  it  was  held  that  the  measure  of  dam- 
ages was  the  same  as  though  the  defendant  had  returned 
them.^  If  the  restoration  is  obtained  by  the  offer  and  payment 
of  a  reasonable  reward,  this  amount,  with  interest  from  the  time 
of  payment,  is  to  be  deducted  from  the  value  of  the  property 
returned.*  Trouble  and  loss  of  time  may  be  taken  into  consid- 
eration as  part  of  the  expense  of  obtaining  restoration.^  Where 
there  is  a  diminution  in  value  from  any  cause  intermediate 

612;  Dyer  t.  Post,  47  Pa.   St.  118;  Cook  v.  Loomis,  26  Couu.  483;  Hub- 
Reynolds  V.  Shuler,  5  Cow.  323.  bard    v.    SeweU,  5  Har.  &  J.   211; 
'  Darley  T.  Crowley,  5  Lans.  301;  Sprague    v.    Brown,   40    Wis.   612; 
Greenfield  Bank  v.  LeaTitt,  17  Pick.  Ewing  v.  Blount,  20  Ala.  694;  Hurl- 
1;  Pierce  v.  Benjamin,  14  Pick.  256;  bui-t  v.  Green,  41  Vt.  490;  Johannes- 
Lucas  V.  Trumbull,    15  Gray,  306;  son  v.  Borschenius,  35  Wis.  131. 
Perkins  v.  Freeman,  26  111.  477;  Hal-  ^  Tyiej-^itt  v.  How,  24  Me.  126. 
lett  V.  Nevion,  14  Jolin.  273;  Delano  ^Kaley  v.  Shed,  10  3Iet.  317;  Low- 
V.  Curtis,  7  Allen,  470;  Cook  v.  Har-  ell  v.  Parker,  10  Mot.  309. 
tie,  8  C.  &  P.  568;  Bennett  v.  Lock-  •)  Greenfield  Bank  v.    Leavitt,    17 
wood,  20  Wend.   223;  Burn  v.  Mor-  Pick.  1. 

ris,   2    C.   &  M.    579;    Doolittle    v.  ^Johannesson  v.  Borschenius,  35 

McCullough,  7  Ohio  St.  299;  Wheel-  Wis.  131. 
ock  V.  Wheelwright,  4   Mass.    104; 


240  LEGAL   LIQUIDATIONS   AND   PvEDUCTIONS. 

the  takinsr  or  conversion  and  return,  the  loss  falls  on  the 
"v^^'ong•doer,  and  will  lessen  the  mitigation  to  which  he  is  entitled 
for  return  of  the  property.'  A  mere  offer  to  return  the  prop- 
erty will  not  lessen  the  damages  ;  "^  nor  will  the  tender  of  part  of 
the  value  by  an  officer  who  has  sold  under  a  void  process.^  By 
a  wrongful  conversion  of  property,  a  cause  of  action  arises 
which  cannot  be  discharged  except  by  the  owner's  act.*  And 
his  acceptance  of  a  return  of  the  property  is  in  general  required 
to  relieve  the  wrongdoer  of  any  part  of  his  habihty  for  the 
value ;  but  as  damages  in  trover  are  assessed  on  equitable  prin- 
ciples, as  is  the  allowance  of  mitigations  generally,  if  property 
wrongfully  taken,  or  its  proceeds,  have  been  applied  to  the  pay- 
ment of  the  plaintiff's  debts,  or  otherwise  to  his  use,  though 
without  his  direction  or  consent,  such  application  may,  under 
certain  circumstances,  be  received  in  mitigation.  An  executor 
de  son  tort  may  show  that  he  has  applied  the  proceeds  of  the 
property  with  which  he  intermeddled  in  payment  of  the  debts 
of  the  deceased.^ 

Where  a  guardian  having  no  power  to  commit  waste  by  cut- 
ting and  removing  timber,  gave,  without  authority,  a  license  to 
another  to  commit  such  waste,  and  the  latter,  with  the  guard- 
ian's assent,  applied  the  proceeds  of  the  timber  to  the  payment 
of  taxes  upon,  or  debts  against  the  infant's  estate,  such  pay- 
ments were  allowed  to  be  shown  by  him  in  mitigation.^  But  it 
has  been  held  that  a  voluntary  purchaser  from  an  executor  de 
son  tort,  when  sued  in  trover,  by  the  rightful  representative, 
cannot  show  in  mitigation  of  damages,  that  since  his  purchase, 
the  executor  de  son  tort  has  paid  debts  which  the  administrator 
was  bound  to  pay  in  due  course  of  administration.''' 

'  Lucas  V.  Trumbull,  15  Gray,  306;  Hostler  v.  Scott,  2  Haywood,  179; 

Perham  v.    Coney,    117  Mass.    102;  Cook  v.  Saunders,  15  Rich.  63. 

Barrelet  v.  Bellgard,  71  111.  380.  « Probate   Court  v.   Bates,   10  Vt. 

2  Norman  v.  Rogers,  29  Ark.  265;  285;  Torrey  v.  Black,  58  N.  Y.  185. 

Stickney  v.  Allen,  10  Gray,  352;  see  'Carpenter  v.  Going,  20  Ala.  587. 

Worman  v.  Kramer,  73  Pa.  St.  378;  In  this  caseDargou,  C.  J.,  said:  "But 

Dow  V.  Humbert,  1  Otto,  294.  the  question  is,  can  the  purchaser 

^  Clark  V.  Hallock,  16  Wend.  607.  from  the  executor  de  son  tort  be 

■*  Livermore  v.  Northrup,  44  N.  Y.  substituted  to  this  equitable  defense 

107.  that  the  executor  de  son  tort  might 

^  Mountford    v.    Gibson,    4  East,  himself  make  ?  We  think  he  cannot, 

441;  Saam  v.   Saam,  4  Watts,  432;  at  least,  in  a  court  of  law.     We  do 


MITIGATION   OF   DAMAGES. 


241 


Where  a  tax  collector  became  a  purchaser  at  a  sale  made  by 
him,  the  sale  was  declared  voidable,  in  trover  against  him ;  Ijnt 
as  the  proceeds  were  applied  to  pay  the  plaintiff's  tax,  the 
amount  so  paid  was  deducted  from  the  damages.^  So  a  sale  by 
a  sheriff  without  giving  notice  has  been  held  a  conversion,  but 
that  the  damages  should  be  only  the  diminution  of  price  caused 
by  such  omission,^  If  goods  are  tortiously  taken,  and  a  creditor 
of  the  owner  afterwards  attaches  them,  and  disposes  of  them 
according  to  laAV,  and  applies  the  proceeds  in  satisfaction  of  a 
judgment  against  the  owner,  such  proceeding  may  be  shown, 
not  as  a  justification  of  the  taldng,  but  in  mitigation  of  dam- 
ages. For  it  would  be  palpably  unjust  for  the  owner  to  receive 
the  full  value  of  Ms  goods  in  their  application  to  the  payment 
of  his  debts,  and  then  afterwards  recover  that  value  from  an- 
other who  has  derived  no  substantial  benefit  from  his  property. 
This  rule  is  not  only  in  conformity  with  justice,  but  has  the 
sanction  of  authority.'^    It  is  not  the  fact  of  the  seizure  that 


not  intend  to  deny  the  common  say- 
ing, that  trover  is  an  equitable  ac- 
tion, and  that  the  plaintiff  can 
recover  damages  only  to  the  extent 
of  the  injury  actually  sustained;  as 
if  the  mortgagee  bring  trover  against 
the  mortgagor,  he  can  recover  only 
the  amount  of  the  debt;  or  if  the 
goods  be  sold  illegally  to  discharge 
a  lien,  the  owner  can  recover  of  the 
purchaser  only  the  value  of  the 
goods,  deducting  the  value  of  the 
lien.  But  we  liold,  that  this  equity 
or  right  must  be  personal  to  the  de- 
fendant himself;  that  is,  it  must 
have  existed  in  him  at  the  time  he 
became  liable  to  the  action;  or  if  ac- 
quired afterwards,  it  must  have  been 
acquired  by  his  own  act;  for  at  law 
he  cannot  be  subrogated  to  the  equi- 
ties of  another,  w^hich  have  sprung 
up  after  the  liability  of  the  defend- 
ant has  become  perfect." 

'  Pierce  v.  Benjamin,  14  Pick.  356. 

2  Wright  v.  Spencer,  1  Stewart, 
576. 

» Curtis  V.  Ward,  20  Conn.  204.  In 
Vol.  1  —  16 


this  case  Ward,  an  attaching  cre<i- 
itor,and  the  officer  who  executed  the 
writ,  were  defendants.  Ward  sued 
out  an  attachment  and  attached 
property,  after  which  that  writ  was 
abandoned  and  the  indorsement  of 
service  erased.  Subsequently  a  new 
attachment  was  sued  out,  followed 
by  judgment  and  execution,  on 
which  the  goods  were  sold.  The- 
defendant  in  the  execution  brought 
trover  for  the  original  taking.  As 
the  defendants  could  not  justify 
that  taking  by  any  return  vipon  the 
first  attachment,  they  suffered  judg- 
ment by  default,  but  they  were 
allowed  to  show  the  subsequent 
disposition  of  the  property  in  mit- 
igation, on  the  authority  of  pre- 
vious cases  cited.  Baldwin  v.  Port°3r, 
12  Conn.  473;  Clark  v.  Whitaker,  19 
Conn.  330.  Referring  to  the  cases 
in  New  York,  denying  the  benefit 
of  such  mitigation  to  the  wi-ong- 
doer  when  the  sale  is  made  upon 
process  sued  out  by  his  agency  or 
for  his  benefit,  Waite,  J.,  said:  "We 


242 


LEGAL   LIQUIDATIONS    AJSTD   EEDUCTIONS. 


gives  the  defense,  but  that  it  has  been  seized  under  such  cir- 
cumstances that  the  owner  has  had  or  could  have  the  benefit  of 
it.^  But  in  New  York  as  the  law  is  settled,  to  protect  the 
wrongdoer  or  to  entitle  him  to  prove  such  sale  and  appHcation 
of  proceeds,  in  mitigation,  tlie  seizure  must  l)e  at  the  instance 
of  a  third  person,  and  not  at  the  instance  of  the  wrongdoer, 
or  upon  process  in  his  favor.^  AVhere  the  wrongdoer  is  not 
thus  excluded  by  the  policy  of  the  law  in  reprobation  of  his 
tort  from  the  benefit  of  such  mitigation,  it  is  generally  avail- 
able to  him.^ 

There  can  be  no  abatement  of  damages  on  the  principle  of 
partial  compensation  received  for  the  injury,  where  it  comes  from 
a  collateral  source,  wholly  independent  of  the  defendant,  and  is 
as  to  him  o^es  inter  alios  acta.     A  man  who  was  working  for  a 


are  unable  to  yield  our  assent  to 
the  correctness  of  that  doctrine 
as  applied  to  a  case  like  the  present, 
where  there  has  been  a  legal  appro- 
priation of  the  property.  Ward,  the 
defendant,  had  a  legal  right  to  attach 
the  goods  in  qviestion;  and  as  they 
were  subsequently  legally  appropri- 
ated to  the  payment  of  the  plaintiff's 
debt,  he  has  in  that  way  received 
the  full  value  of  his  property.  The 
defendants  admit  that  they  have 
committed  a  trespass  in  taking  the 
goods;  and  that  they  are  liable  to 
pay  the  plaintiff  all  the  damage  he 
has  sustained  thereby,  and  no  more. 
These  are  for  the  original  taking  and 
detention  until  the  second  attach- 
ment. Beyond  this  they  have  done 
him  no  wrong.  He  has  no  more 
right  to  complain  of  a  second  at- 
tachment than  he  would  if  made  by 
any  other  creditor,  or  if  there  had 
been  no  previous  taking  of  the  prop- 
evij.  When  the  goods  were  at- 
tached the  second  time,  the  copy 
left  in  service  with  him  sliowed  their 
situation.  It  was  then  at  his  option 
to  regain  the  possession,  either  by 
writ  of  replevin,  or  by  the  payment 
of  the  debt  upon  which  they  were 


attached,  or  suffer  them  to  be  ap- 
plied in  satisfaction  of  that  debt. 
Had  he  obtained  his  goods,  in  either 
of  the  former  modes,  it  would  hardly 
be  claimed  that  he  could  afterwards 
recover  their  value  of  the  defend- 
ant. The  same  result  ought  to  fol- 
low, if  he  suffer  them  to  be  applied, 
in  due  form  of  law,  to  the  payment 
of  his  debt."  See  Wehle  v.  Butler, 
61  N.  Y.  245,  which  was  apparently 
a  similar  case,  and  the  New  York 
doctrine  was  applied  and  mitigation 
denied.  See  Bates  v.  Courtwright, 
36  111.  518;  Wanamaker  v.  Bowes, 
36  Md.  42. 

>  Bull  V.  Liney,  48  N.  Y.  6. 

2  Id. ;  Otis  V.  Jones,  21  Wend.  394; 
Hanmer  v.  Wilsey,  17  Wend.  91; 
Lyon  V.  Yates,  52  Barb.  237;  Peak 
V.  Lemon,  1  Lans.  295;  Higgins  v. 
Whitney,  24  Wend.  379;  Sherry  v. 
Schuyler,  2  HiU,  204;  Ward  v.  Ben- 
son, 31  How.  Pr.  411;  Welile  v. 
Havilan,  42  How.  Pr.  399;  Wehle  v. 
Butler,  43  How.  Pr.  5;  61  N.  Y.  245. 

3  Howard  v.  Cooper,  45  N.  H.  839; 
Doolittle  V.  MeCullough,  7  Ohio  St. 
299;  Stewart  v.  Martin,  16  Vt.  897; 
Montgomeiy  v,  Wilson,  48  Vt.  616. 


MITIGATION  OF  da:siages.  243 

salary  was  injured  on  a  railroad  by  the  negligence  of  the  carrier ; 
the  fact  that  the  employer  did  not  stop  the  salary  of  the  injured 
party  during  the  time  he  was  disabled  was  held  not  available  to 
the  defendant  sued  for  such  injury  in  mitigation.^  JSTor  will 
proof  of  money  paid  to  the  injured  party  by  an  insurer  or  other 
third  person,  by  reason  of  the  loss  or  injury,  be  admissible  to  re- 
duce damages  in  favor  of  the  party  by  whose  fault  such  injury 
was  done.^  The  payment  of  such  moneys  not  being  procured 
by  the  defendant,  and  they  not  having  been  either  paid  or  re- 
ceived to  satisfy  in  whole  or  in  part  his  liability,  he  can  derive  no 
advantage  therefrom  in  mitigation  of  damages  for  which  he  h 
liable.  As  has  been  said  by  anotlier,  to  permit  a  reduction  of 
damages  on  such  a  ground  would  be  to  allow  the  wrongdoer  to 
pay  nothing,  and  take  all  the  benefit  of  a  policy  of  insurance 
without  paying  the  premium.^ 

On  the  same  principle,  it  would  be  no  defense  in  an  action  by 
an  annuitant,  or  any  other  creditor,  that  the  value  of  the  annuity 
had  been  recovered  against  the  plaintiff's  attorney  in  an  action 
for  negligence  in  its  negotiation,  or  that  the  sheriff  had  been 
forced  to  pay  the  debt  in  an  action  for  an  escape.^ 

And  where  a  number  of  plaintiffs  sued  for  damages  resulting  ^ 
from  delaying  their  ship,  it  was  held  to  ])e  no  ground  for  re-*" 
ducing  the  damages  that  some  of  these  plaintiffs  had  been  bene- 
fited by  getting  an  increase  of  passengers  in  another  ship.  And 
the  com-t  said  the  result  would  have  been  the  same  if  there  had 
been  only  one  plaintiff,  who  was  the  owner  of  both  ships.^  So 
general  benefits  resulting  to  a  plaintiff  from  the  erection  and  prox- 
imity to  his  property  of  defendant's  mill,  are  no  ground  for 
reduction  of  damages  the  plaintiff  suffers  by  the  overflowing  of 
his  land  from  the  defendant's  dam.''    And  in  an  action  by  the 

'  Ohio,  etc.  R.  R.  Co.  v.  Dickerson,  Althorf  v.  Wolfe,  22  N.  Y.  355;  Hay- 

59  Ind.  317.  ward  v.  Cain,  105  Mass.  213;  Sher- 

2  Weber  v.  Morris,  etc.  R.  R.  Co.  36  lock  v.  Ailing,  44  Ind.  184. 
N.  J.  L.  213;  Harding  v.  Townsend,         ^Mayne  on  Dam.  92. 
43  Vt.    536;    Carpenter  v.    Eastern         •»  Id. ;  Hunter  v.  King,  4  B.  &  A.  209.  ■ 
Transp.  Co.  71  N.  Y.  574;  Briggs  v.  ^  Ma^^le  on  Dam.  92;  Jebsen  v.  E. 

N.  Y.  etc.  R.  R.  Co.  72  N.  Y.  26;  &  W.  India  Dock  Co.  L.  R.  10  C.  P.  ' 

Perrott    v.    Shearer,   17    IVIich.    48;  300. 

Yates  V.  White,  4  Bing.  N.  C.  272;         *See  Francis  v.  Schoellkoi^f,  53  N. 

Kingsbury  v.  Westfall,  61  N.  Y.  356;  Y.  152;  Marcy  v.  Fries,  18  Kan.  353. 


2M  LEGAL    LIQUIDATIONS    AND    REDUCTIONS. 

master  for  seduction  of  his  servant,  evidence,  in  mitigation,  is 
not  admissible  tliattlie  defendant  offered  to  marry  the  giii.^  In 
an  action  against  one  of  several  co-trespassers,  evidence  of  pay- 
ments by  any  one  of  them,  though  not  received  in  full  satisfac- 
tion, is  admissible  ;  they  are  payments  on  account  of  the  injury 
made  by  those  primarily  Hable;  full  satisfaction  from  either 
would  discharge  all,  and  partial  compensation  should  have  this 
eSect  pro  tanto} 

4.  Mitigation  of  damages  frequently  results  fro^n  fuller  proof 
of  the  res  gestae,  or  the  disclosure  of  some  peculiar  or  exceptional 
features  pertaining  to  the  particular  case,  making  it  apparent  that 
the  plaintiff '' s  injury  is  less  than  it  would  otherwise  appear  to  l>e, 
or  the  defendant  less  cidpdble. 

A  defendant,  in  mitigation  of  damages  for  assault  and  bat- 
tery, may  rely  on  the  res  gestm;  although  if  pleaded  it  would 
amount  to  a  justification  and  require  a  special  plea.^  It  has  been 
held  that,  in  an  action  for  breach  of  a  marriage  promise,  it  may 
be  proved  that  the  defendant's  family  disapproved  of  the  match, 
on  the  ground  that  this  would  diminish  the  happiness  of  the 
union.^  It  may  be  shown  in  such  an  action  that  the  defendant 
was  afflicted  with  an  incurable  disease  at  the  time  of  the  breach.^ 
But  it  has  been  ruled  in  a  late  case  that  the  jury  cannot  consider 
in  mitigation  the  possible  consequences  of  marrying  the  defend- 
ant, arising  from  a  want  of  that  love  and  affection  which  a  hus- 
band should  have  for  his  wife.^ 

In  trespass,  under  a  plea  of  not  guilty,  it  has  been  held  that 
the  defendant  might  show  title  in  himself,  to  confine  the  plaint- 
iff's recovery  to  the  quantity  of  his  interest.'''  An  officer  against 
whom  an  action  is  brought  for  entering  the  plaintiff's  house,  and 
assaulting  him,  may  show  in  mitigation,  but  not  to  prove  the 
entry  lawful,  that  he  entered  for  the  purpose  of  maldng,  and 
did  in  fact  make,  service  under  an  attachment,  although  the 
attachment  was  unlawful  by  reason  of  the  writ  not  having  been 

'IngersoU  v.  Jones,  5  Barb.   661;  Watson   v.   Christie,   2   Bos.   &  P. 

see  White  v.  Murtland,  71  111.  250.  224. 

*  Chamberlain  v.  Murphy,  41  Vt.  ■*  Irving  v.  Greenwood,  1  C.  &  P. 

110.  350. 

''Byers  v.  Homer,  47  Md.  23;  Rus-         '^Sprague  v.  Craig,  51  111.  586. 
sell  "v.  Barrow,  7  Port.  106;  but  see         *  Piper  v.  Kingsbury,  48  Vt.  480. 

'Ballard  V.  Leavitt,  5  Call,  531. 


MITIGATION    OF    DAMAGES.  245 

returned  into  court.*  Where,  in  consequence  of  the  defendant's 
embankment,  the  flood  waters  of  a  river  were  pent  up  and 
flowed  over  the  plaintiff's  land,  and  it  appeared  that  had  the 
embankment  not  been  constructed  the  waters  would  have  flowed 
a  different  way,  but  would  have  reached  the  plaintiff's  land 
and  done  damage  to  a  lesser  amount,  it  was  held  that  the  meas-  . 
ure  of  damages  was  the  difference  between  the  two  amounts.^ 
And  in  an  action  for  a  nuisance  in  erecting  mills  and  maintain- 
ing a  steam  engine  and  furnaces  in  the  vicinity  of  the  plaintiff's 
dwclhng,  the  defendant  vras  held  entitled  to  show  the  general 
character  of  the  neighborhood,  the  various  kinds  of  business 
carried  on  there,  and  the  class  of  tenants  by  whom  dwelling 
houses  in  that  vicinity  were  in  general  occupied,  and  also  the 
probable  disadvantage  and  loss  to  the  plaintiff  from  an  inability 
to  rent  his  houses,  if,  in  consequence  of  the  destruction  or  re- 
moval of  the  defendant's  mills,  there  were  no  longer  workmen 
to  whom  they  could  be  leased.^  The  concurrence  of  other 
causes  with  the  defendant's  acts,  in  creating  a  nuisance,  may 
also  be  shown  in  mitigation.* 

On  an  assessment  of  damages,  after  a  default,  in  an  action  for  . 
negligence,  the  defendant,  for  mitigation,  and  to  reduce  to  a  j 
nominal  sum  the  damages,  may  show  that  there  was  no  negli-  ^ 
gence ;  for  this  purpose,  it  is  immaterial  whether  the  charge  is 
of  injury  to  person  or  joroperty,  and  it  makes  no  difference  that 
the  damages  are  entire  and  indivisible.^    A  total  or  partial  want 
or  failure  of  consideration,  on  the  same  principle,  may  be  shown 
in  an  action  upon  contract,®  or  any  defense  arising  out  of  the 
plaintiff's  cause  of  action  itself,  as  where  the  action  is  for  the 
price  of  labor  or  of  a  commodity  and  defects  are  proved.' 

And  in  many  English  cases  this  defense  is  recognized  where, 

'Paine  v.  Farr,  ll8  Mass.  75.  ' Crookshank v.  Mallory,  3  Greene 

^Workman  v.  Great  Northern  R'y  (Iowa),  257;  Beston  v.  Butts,  7  East, 

Co.  32  L.  J.  Q.  B.  279.  479;  Farnsworthv.  Garrard,  1  Camp. 

-JCall  V.  Allen,  1  Allen,  137;    see  38;  Denew  v.  Daverell,  3  Camp.  451; 

Francis  v.  Sciioellkopf ,  53  N.  Y.  152.  Baiilie  v.  Kell,  4  Bing.   N.  C.   638; 

^Sherman  v.  Fall  River  Iron  Cutler  v.  Close,  5  C.  &  P.  337;  Sin- 
Works,  5  AUen,  213.  clair  v.  Bowles,  9  C.  &C.  92;  Thorn- 

*  Batchelder  v.  Bartholomew,  44  ton  v.  Place,  1  M.  &  Rob.  218;  Kelley 
Conn.  494.  v.   Town   of    Bradford,    33   Vt.    35; 

*  Darnell  V.  Williams,  2  Stark.  145;  McKeuney  v.  Springer,  3  Ind.  59; 
Simpson  v,  Clark,  2  C.  M.  &  R.  342.  Allen    v.    McKibben,   5    Mich.   449; 

Woods  V.  Schettler,  23  Wis.  501. 


246  LEGAL    LIQUIDATIONS   AJS[D   KEDTJCTIONS. 

according  to  the  general  course  of  American  decisions,  the 
broader  defense  of  recoupment  would  be  allowed.^ 

In  actions  for  neglect  of  duty  or  misconduct  of  ministerial 
officers  affecting  parties  entitled  to  call  on  them  for  service,  or 
for  whom  such  officers  are  required  by  law  to  perform  duties ; 
as  well  as  in  like  actions  by  employers  against  agents  and  at- 
torneys, the  general  rule  is  that  the  injured  party  is  entitled  to 
compensation  commensurate  with  his  actual  loss.  "Where  such 
neglect  or  misconduct  results  in  a  failure  to  collect  a  debt,  or 
impairs  an  existing  security,  and  the  prima  facie  loss  is  the 
amount  of  the  debt,  ordinarily  any  evidence  is  properly  defen- 
sive or  receivable  in  mitigation  which  negatives  that  loss  either 
wholly  or  in  part.'^  So  a  sheriff  in  an  action  for  escape,  or  any 
neglect  in  respect  to  an  execution,  may  show  in  mitigation  that 
the  execution  debtor  was  wholly  or  partially  insolvent ;  that  if 
due  diligence  had  been  used  the  whole  judgment  or  some  part 
would  have  remained  unsatisfied.^ 

There  is  an  apparent  exception  to  the  general  proposition  that 
the  party  injured  shall  only  recover  his  actual  loss  in  the  case  of 
ministerial  officers,  through  whose  diHgent  action  the  party  in- 
terested must  realize  a  debt  or  come  into  possession  of  a  right. 
Where  a  sheriff  suffers  an  escape  on  final  process,  or  fails  to  col- 
lect and  return  an  execution,  or  to  perform  a  peremptory  duty 
to  levy  a  tax  or  the  hke,  it  is  generally  held  that  the  fact  that 
the  debt  is  still  safe  and  collectible  by  a  repetition  of  the 
resort  to  the  defendant,  officially,  is  no  defense ;  ^  otherwise, 

1  Street  v.  Blay,  2  B.  &  Ad.  456;  9  Mass.  188;  Lush  v.  Falls,  63  N.  C. 
Parsons  v.  Sextou,  4  C.  B.  899;  Poul-  188;  West  v.  Rice,  11  Met.  564;  State 
ton  V.  Lattimore,  9  B.  &  C.  259;  v.  Goddard,  11  Md.  317;  State  v. 
Mondell  v.  Steel,  8  M.  &  W.  855;  Muller.  50  Ind.  598;  Cole  v.  Peacock, 
Dawson  v.  Collins,  10  C.  B.  523.  14  Ohio  St.  187;  Cooper  v.  Wolf,  15 

2  Van  Wart  v.  WooUey,  3  B.  &  C.  Ohio  St.  523;  Bank  of  Rome  v.  Cur- 
439;  Allen  v.  Suydam,  20  Wend.  321;  tiss,  1  Hill,  275;  Pardee  v.  Robertson, 
Russell  V.  Turner,  7  John.  189;  Rus-  6  Hill,  550;  Bowman  v.  Cornell,  39 
seU  V.  Palmer,  2  Wils.  325;  Stone  v.  Barb.  70;  Dunphy  v.  Whipple,  25 
The  Bank  of  Cape  Fear,  3  Dev.  408.  Mich.  10. 

3  Kellogg  V,  Maure,  9  John.  300;  *Ledyard  v.  Jones,  7  N.  Y.  550; 
Patterson  v.  Westervelt,  17  Wend.  Bank  of  Rome  v.  Curtiss,  1  HiU,  275; 
543;  Hootman  V.  Shiner,  15  Ohio  St.  Pardee  v.  Robertson,  6  Hill,  550; 
43;  Ledyard  v.  Jones,  7  N.  Y.  550;  Kellogg  v.  Manro,  9  John.  30;  Weld 
People  V.  Lott,  31  Barb.  130;  Brooks  v.  Bartlett,  10  Ohio  St.  43;  Arden  v. 
V.  Hoyt,  6  Pick.  468;  Shackford  v.  Goodacre,  11  C.  B.  371;  Moore  v. 
Goodwin,  13  Mass.  187;  Nye  v.  Smith,  Moore,  25  Beav.  8;  Heming  v.  Hale, 


MITIGATIOX   OF   DA]V£AGES.  247 

as  Watson,  J.,  said : ^  "If  the  officer  is  sued  for  a  neglect  of 
duty,  he  can  say  the  defendant  had  no  property  out  of  which  he 
could  coUect  the  money,  and  that,  it  is  conceded,  is  a  good  de- 
fense ;  or  he  can  say  he  has  propert}'^  out  of  Avhich  you  can  still 
collect  it,  and  therefore  nothing  but  nominal  damages  can  be  re- 
covered." He  adds :  "  The  second  execution  issued  upon  the  same 
judgment,  would  admit  of  the  same  defense,  and  so  on,  as  often 
as  they  might  be  issued,  provided  the  judgment  debtor  did  not 
in  the  meantime  get  rid  of  his  property."  ^  In  an  action  against 
a  supervisor  of  a  town  who  was  required  by  law  to  assess  the 
damages  which  had  been  allowed  the  plaintiff  for  property  taken 
for  public  use,  and  who  had  omitted  to  do  so,  it  was  held  that 
the  super\'isor  was  personally  liable  for  the  ^vhole  amount  ^vhich 
the  plaintiff  had  been  unable  to  obtam  by  reason  of  the  defend- 
ant's refusal  to  perf  onn  his  duty.^  "  It  cannot  be  assumed,"  say 
the  court,  "  that  the  defendant  would  be  taught  by  the  result  of 
one  action  and  proceed  to  do  his  duty,  and  thus  avoid  another. 
The  plaintiff  is  not  to  be  thus  put  off.  The  defendant's  miscon- 
duct has  deprived  him  of  obtaining  his  money,  and  the  defend- 
ant must  answer  to  the  whole  injury  which  he  has  occasioned."  ^ 

7  C.  B.  N.  S.  48;  Macrae  v.  Clai-k,  L.  recovered  is  thus  prescribed  by  the 

R.  1  C.  P.  403;  Goodrich  v.  Starr,  18  statute,  wliich  is  'the  damage  sus- 

Vt.  227.  tained '  by  such  violation  of   duty, 

•  Ledyard  v.  Jones,  supra.  whatever  the  amount  may  be.     The 

2  But  see  Tempest  v.  Linley,  Clay-  full  amount  to  be  levied  and  made 

ton,  34;  Norris'  Peake,  608;  Stevens  on  the  execution  is  not  necessarily 

V.  Rowe,  3  Denio,  327.  recoverable,   although  prima  facie 

•^  Clark  V.  MiUer,  54  N.  Y.  528.  that  may  be  the  just  measure  of 

■*  In  the  overruled  case  of  Stevens  reparation  where  nothing  is  shown 

V.  Rowe,  3  Denio,  337,  which  was  an  to  induce  a  belief  that  the  real  loss 

action  against  a  sheriff  for  neglecting  of  the  aggrieved  party  is  less  than 

to  return  an  execution,  Beardsley,  that  amount."    After  referring  to 

J.,  said:  "  At  common  law  no  action  the    point    decided    in    Pardee    v. 

lay  for  such  violation  of  duty,  al-  Robertson,  supra,  and  in  The  Bank 

though  the  sheriff  might  be  attached  of  Rome  v.  Curtiss,  1  Hill,  175,  he 

and  punished  for  it.     I  admit,  how-  continued:  "I  must  say  that  I  should 

ever,  that  under  the  statute  an  ac-  find  great    difficulty    in    following 

tion  may  be  maintained  for  such  either  of  these  cases  as  autliority, 

misconduct,  and  in  which  the  party  even  where  the  facts  and  circum- 

aggrieved  is  entitled  to  recover  '  for  stances  were  identically  the  same; 

the  damages  sustained  by  him '  (2  and  I  am  by  no  means  disposed  to 

R.  S.  440,  §  77;   Pardee  v.  Robert-  extend  them  as  authority  to  cases 

son,  6  Hill,  550).     The  amount  to  be  which  admit  of  a  plain  distinction 


248 


LEGAL    LIQUIDATIONS    AND   REDUCTIONS. 


Tins  rigorous  severity  is  exceptional  and  based  on  considera- 
tions of  policy  to  ensure  the  active  diligence  of  such  officers ;  in 
fact  of  a  punitive  nature  and  object.  In  the  case  just  referred 
to,  however,  the  rule  was  applied  to  an  officer  who,  by  an  error 
of  judgment,  omitted  to  assess  a  tax  for  a  sum  due.  He  omit- 
ted to  do  it  because  he  believed  the  law  requu'ing  it  was  uncon- 
stitutional.    The  court  say  honest  ignorance  does  not  excuse  a 


in  matter  of  fact.  The  decision  in 
The  Bank  of  Rome  v.  Curtiss  was 
said  to  be  in  accordance  with  tlie 
rule  laid  down  in  two  cases  adjudged 
in  Massachusetts;  but  as  I  read  those 
cases  they  liave  no  application  to 
such  a  state  of  facts  as  was  shown 
to  exist  in  The  Bank  of  Rome  v. 
Curtiss.  lu  that  case  it  appeared 
that  the  debt  had  not  jpeen  lost,  al- 
though its  collection  had  been  de- 
layed by  the  neglect  of  the  sheriff; 
for  the  proof  shows  that  the  debt 
was  still  safe  and  collectible.  Yet 
the  court  held  that  the  sheriff  was 
liable  for  the  full  amount  of  the  ex- 
ecu^tion  in  his  hands.  I  am  unable 
to  see  any  such  rule  laid  down  in 
either  of  the  Massachusetts  cases. 
In  the  first  of  these  cases  in  order 
of  time  (Weld  v.  Bartlett,  10  Mass. 
474),  Parker,  J.,  said  that  where  an 
officer  had  '  neglected  to  do  his 
duty,  so  that  the  effect  of  the  judg- 
ment appears  to  he  lost,  the  judg- 
ment in  the  suit  so  rendered  inef- 
fectual is  prima  fade  evidence  of 
the  measure  of  injury  which  the 
plaintiff  has  sustained;  but  it  may 
be  met  by  evidence  of  the  inability 
of  the  debtor  to  pay.'  The  other 
case  (Young  v.  Hosmer,  11  Mass.  89) 
is  equidly  explicit,  and  makes  tlie 
sheriff  liable  for  the  entire  debt;  be- 
cause, 'the  benefit  of  the  judgment, 
to  the  whole  amount  of  it,  is  to  be 
presumed  lost  by  the  negligence  of 
the  officer.'  This  principle  can 
surely  have  no  bearing  on  a  case  in 
which  it  appears  that  the  judgment 


had  not  been  lost,  but  was  still  safe 
and  coUectible.  In  KeUogg  v.  Manro, 
9  John.  300,  which  was  also  cited  as 
sustaining  The  Bank  of  Rome  v. 
Curtiss,  the  rule  is  stated  as  in  the 
Massachusetts  cases.  It  was  said  to 
be  too  plain  for  discussion  that  the 
j)laiutiff  might  recover  beyond  nom- 
inal damages.  'He  is  entitled,'  saj' 
the  court,  ^  prima  facie,  to  recover 
his  whole  debt,  which  is  presumed  to 
he  lost  hy  the  escape.'  I  make  no 
objection  to  this  rule  in  any  action 
brought  against  an  officer  for  the 
violation  of  such  a  duty.  Prima 
facie  it  may  well  be  taken  that  the 
whole  debt  has  been  lost  by  the  neg- 
ligence of  the  officer;  and  if  such 
be  the  fact,  it  is  most  just  that  he 
should  pay  the  full  amount.  But 
when  the  proof  shows  that  the  debt 
has  not  been  lost,  although  the  col- 
lection has  been  delayed,  and  that  it 
is  still  safe  and  coUectible,  it  seems 
to  me  entirely  clear  that  the  rule 
laid  down  in  the  Massachusetts  cases 
and  in  Kellogg  v.  Manro,  is  wholly 
inapplicable.  .  .  .In  Pardee 
V.  Robertson,  it  was  proved  that 
the  sheriff  had  actually  collected  the 
full  amount  of  the  execution;  the 
money  still  remaining  in  his  hands. 
But  in  the  case  now  to  be  decided 
the  fact  was  otherwise.  The  proof 
showed  that  the  money  had  nt)t  been 
collected;  although,  if  the  judgment 
was  a  hen  on  real  estate  in  the 
county  of  Oswego,  as  the  plaintiff 
offered  to  show,  the  sheriff  might 
have  made  the  amount  as  required 


MITIGATION    OF   DA:MAGES.  2tl:9 

public  oiEcer  for  disobeying  the  law.^  It  will  exempt  him  from 
punitive  damages.  In  a  case  for  escape,  Jarvis,  C.  J.,  said :  "  The 
rule  might  be  supposed  to  operate  unjustly  towards  the  sheriff, 
where  the  execution  debtor  has  the  means  of  paying  the  debt  at 
the  moment  of  the  escape,  and  stiU  continues  notoriously  in 
solvent  cu-cumstances.  In  this  case,  the  value  of  the  custody 
was  the  amount  of  the  debt,  and  the  plaintiff  will  be  entitled  to 
recover  substantial  damages.  It  is  true,  that  the  recovery  of 
such  damages  will  not  satisfy  the  execution ;  and  the  debtor  may 
be  retaken  by  the  plaintiff ;  for  the  debtor  cannot  take  advan- 
tage of  his  own  ^\Tong  and  avail  himself  of  the  recoveiy  against 
the  sheriff.  On  the  other  hand,  the  sheriff  is  not  damnified, 
for  he  may  retake  the  debtor,  or  recover  against  him  by  action, 
the  amount  he  has  been  compelled  to  pay."  ^  Where  the  officer 
fails  to  collect  an  execution  from  a  debtor  who  is  "  notoriously 
in  solvent  circumstances,"  and  continues  so,  there  is  no  ^\Tong  of 
the  execution  debtor,  hke  an  escape,  to  give  the  sheriff  any  ac- 
tion against  him  ;  nor  do  the  authorities  in  this  class  of  actions 
proceed  on  the  theory  that  such  a  recovery  against  the  sheriff 
transfers  the  judgment  debt  to  him.  •  Hence  the  recovery  of  the 
fuU  amount  of  the  judgment,  or  other  demand,  against  an  officer 

by  the  execution.  ...  If  the  the  full  amount  of  the  execution 
sheriff  should  be  compelled  to  pay  debt,  as  it  is  presumed  to  have  been 
the  full  amount  of  the  execution,  lost  by  his  neglect.  This  in  my  es- 
for  the  reason  that  the  judgment  timatiou  is  not  a  very  violent  pre- 
was  a  lieu  on  real  estate,  out  of  sumption;  but  still  may  be  just  in 
which  the  money  might  have  been  regard  to  the  officer  who  is  in  de- 
collected,  as  was  offered  to  be  proved  fault.  But  when  it  is  shown  that 
on  the  part  of  the  plaintiffs,  he  the  debt  has  not  been  lost,  there  is 
would  be  entirely  remediless.  He  no  room  for  presumption,  and  the 
could  not  enforce  the  judgment  and  prima  facie  case  no  longer  exists. 
execution  for  his  own  indemnity,  By  the  statute  the  measure  of  the 
but  must  stand  the  entire  loss.  This  recovery  is  the  '  damages  sustained,' 
would  be  too  severe  where  the  debt  which,  presumptively,  I  admit  is  the 
is  still  safe,  and  the  only  injury  sus-  full  amount  of  the  execution.  But 
tained  has  resulted  from  mere  delay,  the  sheriff  may  mitigate  the  amount 
It  is  just  that  the  sheriff  should  not  simply  by  showing  his  inability 
make  the  party  good  by  paying  all  to  collect  the  money,  but  by  proof 
the  damages  sustained  by  him ;  and  that  the  debt  is  stiU.  safe  and  col- 
BO  is  the  statute  on  which  the  action  lectible.'" 

is  founded;  but  to  go  beyond  this  'Clarke  v.  Miller,  54  N.  Y.  528. 

seems  to  me  quite  too  rigorous.  ^  Arden  v,  Goodacre,  11  C.  B.  371. 
Fi'ima  facie  the  sheriff  is  liable  for 


250  LEGAL    LIQUID ATIO:-73    ANT)   REDUCTIONS. 

who  has  neglected  to  do  some  act  which  would  have  enabled  the 
party  interested  to  realize  at  once,  the  debtor  being  still  solvent, 
or  the  debt  not  being  wholly  lost  by  the  default,  is  not  a  meas- 
ure of  damages  which  is  strictly  compensatory.  To  the  extent 
of  the  actual  value  of  the  debt,  in  respect  to  which  the  negli- 
gence occurred,  at  the  time  of  the  recovery  against  the  officer, 
the  plaintiff  is  over  compensated  when  he  has  recovered  from  the 
officer  the  full  amount.  Exclusion  of  proof  of  that  value  in  mit- 
igation, cannot  rest  on  the  argument  that  its  reception  and  con- 
sideration would  deprive  the  creditor  of  any  compensation  for 
actual  loss. 

The  supreme  court  of  the  United  States,  in  a  recent  decis- 
ion,^ have  limited  the  application  of  this  rigorous  rule  against 
officers.  The  action  was  for  neglect  of  duty  by  the  defendants 
as  supervisors  of  a  town  in  Wisconsin,  in  refusing  to  place  upon 
the  tax  list,  as  required  by  a  statute,  the  amount  of  two  judg- 
ments recovered  by  the  plaintiff  against  the  town.  The  debtor 
being  a  townshij),  it  was  presumed  that  its  taxable  property  con- 
tinued the  same  as  when  the  levy  should  have  been  made.  Miller, 
J.,  said  "  the  single  question  presented  is  whether  these  officers, 
by  the  mere  failure  to  place  on  the  tax  hst,  when  it  was  theu' 
duty  to  do  so,  the  judgment  recovered  by  the  plaintiff  against 
the  town,  became  thereby  personally  liable  to  the  plaintiff  for 
the  whole  amount  of  said  judgment,  without  producing  any 
other  evidence  of  loss  or  damage  growing  out  of  such  failm-e. 

"  It  is  not  easy  to  see  upon  what  principle  of  justice  the  plaint- 
iff can  recover  from  the  defendants  more  than  he  hsCs  been  in- 
jured by  their  misconduct. 

"  If  it  were  an  action  of  tresjjass,  there  is  much  authority  for 
saying  that  the  plaintiff  would  be  limited  to  actual  and  compen- 
satory damages,  unless  the  act  were  accompanied  with  mahce  or 
other  aggravating  circumstances.  How  much  mere  reasonable, 
that  for  a  failure  to  perform  an  act  of  official  duty,  through  mis- 
take of  what  that  duty  is,  that  the  plaintiff  should  be  limited  in 
his  recovery  to  his  actual  loss,  injury,  or  damage. 

"  Indeed,  where  such  is  the  almost  universal  rule  for  measur- 
ing damages  before  a  jury,  there  must  be  some  special  reason 
for  a  departure  from  it. 

>  Dow  V.  Hambert,  1  Otto,  294. 


MITIGATION   OF   DAilAGES. 


251 


.  .  .  "  The  expense  and  cost  of  the  vain  effort  to  have  the 
judgment  placed  on  the  tax  hst ;  the  loss  of  the  debt,  if  it  had 
been  lost ;  any  impairment  of  the  efficiency  of  the  tax  levy,  if 
such  there  had  been  ;  in  short,  any  conceivable  actual  damage, — 
the  court  would  have  allowed,  if  proved.  But  plaintiff,  resting 
solely  on  his  proposition  that  defendants,  by  failing  to  make  the 
levy,  had  become  his  debtors  for  the  amount  of  his  judgment, 
asked  for  that,  and  would  accept  no  less."  The  court  reached 
the  conclusion,  "that,  in  the  absence  of  any  proof  of  actual 
damage,  ,  .  the  defendants  were  hable  to  nominal  damages 
and  to  costs,  and  no  more."  ^ 


'  Judge  Miller  thus  vindicates  the 
soundness  of  this  conclusion:  "Coun- 
sel for  plaintiff  relies  mainly  on  the 
class  of  decisions  in  which  sheriffs 
have  been  held  liable  for  the  entire 
judgment  for  failing  to  perform  their 
duty  when  an  execution  has  been 
placed  in  their  hands.  The  decisions 
on  this  subject  are  not  harmonious; 
for  while  it  has  been  generally  lield 
that  on  a  failure  to  arrest  the  de- 
fendant on  a  capias,  or  levy  an  exe- 
cution on  his  property,  or  to  allow 
him  to  escape  when  held  a  x^risoner, 
the  amount  of  the  debt  is  the  pre- 
sumptive measure  of  damages,  it 
has  been  held  in  many  courts  that 
this  may  be  rebutted,  or  the  dam- 
ages reduced  by  showing  that  the 
prisoner  has  been  re-arrested,  or  that 
there  is  sufficient  subject  to  levy 
to  satisfy  the  debt,  or  other  mat- 
ter, showing  that  the  plaintiff  has 
not  sustained  damages  to  the  amount 
of  the  judgment.  This  whole  sub- 
ject is  fully  discussed  in  Sedg.  on 
Damages,  506-525.  Richardson  v. 
Spencer,  6  Ohio,  13.  But  without 
going  into  this  disputed  question, 
^ve  are  of  opinion  that  those  cases 
do  not  furnish  the  rule  for  the  class 
to  which  this  belongs. 

' '  The  sheriff,  under  the  laws  of 
England,  was  an  officer  of  great  dig- 


nity and  honor.  He  was  also  the 
custodian  of  the  jail  in  which  all 
prisoners,  whether  for  crime  or  for 
debt,  were  kept.  He  had  authority 
in  all  cases,  when  it  was  necessary, 
to  call  out  the  whole  power  of  the 
covmtry,  to  assist  him  in  the  per- 
formance of  his  duty.  The  principle 
of  the  sheriff's  liability,  here  asserted, 
originated  undoubtedly  in  cases  of 
suit  for  an  escape.  Imprisonment 
of  the  debtor  was  then  the  chief,  if 
not  the  only  mode  of  enforcing  sat- 
isfaction of  a  judgment  for  money. 
It  was  a  very  simple,  a  very  speedy, 
and  a  very  effectual  mode.  The 
debtor  being  arrested  on  a  capias, 
which  -was  his  first  notice  of  the  ac- 
tion, was  held  a  prisoner,  unless  he 
could  give  bail,  until  the  action  was 
tried.  If  he  gave  bail,  and  judg- 
ment went  against  him,  his  bail  must 
pay  the  debt,  or  he  could  be 
re-arrested  on  a  capias  ad  satisfaci- 
endum; and,  if  he  had  given  no  bail, 
he  was  holden  under  this  second 
writ  until  the  money  was  paid.  To 
Ijermit  him  to  escape  was  in  effect 
to  lose  the  debt;  for  his  body  had 
been  taken  in  satisfaction  of  the 
judgment.  Inasmuch  as  the  object 
of  keeping  the  defendant  in  prison 
was  to  compel  the  payment  of  thC) 
debt  through  his  desire  to  be  released, 


9r^^. 


LEGAL    LIQUIDATIONS    AND    EEDrCTIONS. 


The  previous  consent  of  the  plaintiff  to  the  act  which  he 
complains  of,  though  not  given  in  a  form  to  bar  him  or  support 
a  plea  of  justification,  may  yet  be  proved  in  mitigation  of  dam- 
ages. Thus,  in  trespass  for  an  alleged  injury  to  the  plaintiff's 
v^all  by  inserting  joists  in  it,  evidence  that  the  wall  was  so  used 
by  the  defendant  in  the  erection  of  an  adjoining  building  under 
an  express  parol  agreement  with  the  plaintiff,  is  admissible  un- 


the  plaintiff  was  entitled  to  have 
him  in  custody  every  hour  until  the 
debt  was  paid. 

"  It  is  also  to  be  considered,  that, 
for  every  day's  service  in  keeping 
the  prisoner,  the  sheriff  was  entitled 
to  compensation  by  law  at  the  hands 
of  the  creditor.  Williams  v.  Mos- 
tyn,  4  M.  &  W.  145;  WilUams  v. 
Griffith,  3  Exch.  584;  WiUie  v.  Bird, 
4Q.  B.  56G;  6  id.  468. 

"  With  the  means  at  the  hand  of 
the  sheriff  for  safe-keeping  and 
re-arrest,  with  the  escape  of  the 
debtor  almost  equivalent  to  a  loss 
of  the  debt,  and  with  compensa- 
tion paid  him  by  plaintiff  for  his 
service,  it  is  not  surprising,  that, 
when  he  negligently  or  inten- 
tionally perinitted  an  escape,  he 
should  be  held  liable  for  the  whole 
debt.  How  different  the  duties  of 
the  class  of  officers  to  which  defend- 
ants belong,  and  the  circumstances 
under  wliich  their  duties  are  jaer- 
formed!  There  is  no  profit  in  the 
office  itself.  It  is  undertaken  mainly 
from  a  sense  of  public  duty;  and,  if 
there  be  any  compensation  at  all,  it 
is  altogether  disproportionate  to  the 
responsibility  and  trouble  assumed. 
They  are  in  no  sense  the  agents  of 
creditors,  and  receive  no  compensa- 
tion from  the  liolders  of  judgments 
or  other  claims  against  the  town,  for 
the  collection  and  payment  of  their 
debts.  There  are  no  prisons  under 
their  control,  no  prisoners  committed 
to  their  custody,  no  posse  comitatus 
to  be  brought  to  their  aid;  but  with- 


out reward  and  without  special  pro- 
cess of  a  court  to  back  them,  they 
are  expected  to  levy  taxes  on  the 
reluctant  community  at  whose  hands 
they  hold  office.  To  hold  these  hum- 
ble but  necessary  pubhc  duties  can 
only  be  undertaken  at  the  hazard 
of  personal  liability  for  every  judg- 
ment which  they  fail  to  levy  and 
collect,  whether  through  mistake, 
ignorance,  inadvertence,  or  accident, 
as  a  sheriff  is  for  an  escape,  without 
any  proof  that  the  judgment  creditor 
has  lost  his  debt,  or  that  its  value  is 
in  any  manner  impaired,  is  a  doc- 
trine too  harsh  to  be  enforced  in  any 
court  where  irai:)risoument  for  debt 
has  been  abolished. 

"The  case  of  The  King  on  the 
Prosecution  of  Parbury  v.  The  Bank 
of  England,  Doug.  534,  is  cited  as 
sustaining  tlie  plaintiff  in  error.  It 
was  an  application  for  a  mandamiis 
to  compel  the  governor  and  company 
of  the  Bank  of  England  to  transfer 
stock  of  the  bank.  The  writ  was 
denied  on  several  grounds;  among 
which,  as  a  suggestion.  Lord  Mans- 
field said  that  '  where  an  action  will 
lie  for  complete  satisfaction  (as  in 
that  case),  equivalent  to  specific  re- 
Uef,  and  the  right  of  the  party 
applying  is  not  clear,  the  court  will 
not  interpose  the  extraordinary  rem- 
edy of  a  mandavnisJ'  He  then 
shows  that  tlffe  riglit  of  the  party  in 
tliat  case  to  have  the  transfer  made 
is  not  clear.  As  this  was  not  an  ac- 
tion against  the  officers  of  the  bank 
for  damages,  the  remark  that  there 


MITIGATION   OF   DAMAGES. 


253 


der  the  general  issue  in  mitigation.^  So  it  may  be  proved  that 
the  injury  in  question  was  inflicted  in  a  fight  by  mutual 
consent.^ 

Any  exceptional  conduct  or  character  of  the  plaintiff  which 
impairs  his  title  to  compensation  or  diminishes  the  injury  in 
question  is  provable  in  mitigation. 

In  those  actions  where  the  wrong  complained  of  involves  in- 
jury to  character,  the  defendant  ma}^  show,  in  order  to  reduce 
damages,  the  general  bad  character  of  the  plaintiff.^  In  an 
action  against  a  contractor  for  failing  to  fulfil  his  contract  for 
particular  worlcs,  the  defendant  may  show  that  the  price  lias  not 
been  paid.*    Evidence  that  the  plaintiff's  marriage  with  his  re- 


was  other  relief  is  only  incidental, 
and  the  point  as  to  the  measui'e  of 
damages  was  not  in  issue. 

"A  note  to  the  principal  case 
shows  that  an  action  of  assumpsit 
was  afterwards  brought  and  com- 
promised before  final  judgment. 
But  on  tlie  whole  case  there  is  no 
discussion  of  the  measure  of  dam- 
ages, and  that  question  remained  un- 
decided. The  case  of  Clark  v.  Miller, 
54  N.  Y.  528,  decided  very  recently 
in  the  commission  of  appeals,  ap- 
pears to  be  more  in  point.  It  was 
an  action  against  the  supervisor  of 
the  town  of  Southport,  Chemung 
county,  for  refusing  to  present  to 
the  board  of  supervisors  of  the 
county  tlie  plaintiff's  claim  for  dam- 
ages as  re-assessed  for  laying  out  a 
road  through  his  land. 

"The  court  without  much  discus- 
sion of  the  principle  holds  the 
defendant  liable  for  the  full  amount 
of  the  re-assessment,  on  the  author- 
ity of  the  Commercial  Bank  of  Buf- 
falo V.  Kortright,  22  Wend.  348. 
That  case  was  decided  in  the  court 
of  errors  in  1839.  It  was  an  action 
for  ^fusing  to  make  a  transfer  of 
stock  of  the  bank.  The  chancellor 
(Walworth)  was  of  opinion  that  the 
extent  of  the  damages  was  the  de- 
preciation of  the  stock,  and  not  its 


full  value;  and  of  this  opinion  were 
four  senators. 

"  In  the  case  of  The  People  v.  The 
Supervisors  of  Richmond,  28  N.  Y. 
112,  also  before  the  court  in  20  id. 
252,  the  relator  had  sued  out  a  writ 
of  mandamus  requiring  the  super- 
visors to  audit  his  claim  for  damages 
assessed  for  land  taken  as  a  liigh- 
way.  The  supervisors  made  a  return 
to  the  writ,  which  proving  false,  the 
supreme  court  rendered  a  judgment 
against  them  personally  for  the  claim 
of  $200  and  for  .$84  damages  for  the 
delay.  The  court  of  appeals  said 
that  as  the  return  of  the  supervisors 
was  false,  and  the  relator  had  been 
kept  out  of  the  money  to  which  he 
was  entitled  from  tlie  town,  the 
supervisors  may  be  properly  made 
liable  in  damages  to  the  extent  of 
the  interest  upon  $200, —  to  wit,  $84, 
and  they  affirm  the  judgment  as  to 
the  $84  and  reverse  it  as  to  the  $200, 
for  wliich  they  order  a  peremptory 
writ  of  mandamus.  This  answer 
accords  precisely  with  our  views,  and 
we  think  it  of  equal  authority  with 
Clark  V.  Miller." 

'  Hamilton  v.  Windolk,  ,36  Md.  301. 

-  Adams  v.  Waggoner,  32  Ind.  531. 

'Fitzgisbon  v.  Bro^vn,  43  Me.  169; 
see  ante,  p.  234. 

•»  Ready  v.  Tuskaloosa,  6  Ala.  327. 


254  LEGAL   LIQUIDATIONS    AND   EEDUCTIONS. 

puted  wife  was  void  is  admissible  in  an  action  for  seduction  of 
liis  reputed  daughter,  to  rebut  the  presumption  of  actual  ser- 
vice, Ijy  showing  that  the  plaintiff  was  not  legally  entitled 
thereto  and  in  mitigation  of  damages.^ 

In  an  action  for  criminal  conversation,  it  may  be  shown  that 
the  plaintiff  was  wanting  in  affection  for  his  wife,  to  support 
the  inference  that  his  loss  was  trifling ;  '^  or  that  there  was  but 
shght  intercourse  between  them ;  ^  and  in  an  action  for  breach  of 
promise  of  marriage,  that  the  plaintiff  was  utterly  unfit  to  ap- 
preciate the  person  to  whom  he  engaged  himself.*  Declara- 
tions by  the  plaintiff  pending  the  action  that  she  would  not 
marry  the  defendant  except  for  his  money  have  been  admitted.^ 
The  fact  of  a  female  plaintiff  having  had  an  illegitimate  child, 
though  known  to  the  defendant  at  the  time  of  the  promise,  may 
be  proved ;  ^  and  her  intercourse  with  another  man  before  and 
after  the  defendant's  promise.'^ 

In  actions  for  seduction,  proof  of  plaintiff's  careless  indiffer- 
ence to  defendant's  opportunities  for  criminal  intercourse  with 
her  daughter,  may  be  shown  in  mitigation,^  but  actual  conniv- 
ance by  the  plaintiff  would  be  a  bar.^ 

In  an  action  done  by  cattle  on  the  plaintiff's  land,  it  may  be 
shown  by  the  defendant  in  mitigation  that  the  cattle  got  upon 
the  land  by  reason  of  plaintiff's  defective  fence.^° 

Wliatever  diminishes  the  loss  of  the  injm'ed  party,  or  where 
the  recovery  is  influenced  by  the  amount  of  benefit  derived 
from  the  act  complained  of  by  the  defendant,  whatever  dimin- 
ishes the  value  of  that  benefit  may  be  proved  in  mitigation, 
where  the  matter  diminishing  the  loss  in  the  former  case,  or 
impairing  the  benefit  in  the  other,  is  part  of  the  transaction. 
Thus  where  A  took  wrongful  possession  of  premises  on  the  2d 
of  June,  and  a  sum  of  money  became  due  for  ground  rent  on 

'Howland  v.  Howland,  114  Mass.  ^Denslow  v.  Van  Home,  16  Iowa, 

517.  476. 

2  Bromley  v.  Wallace,  4  Esp.  237.  '  Burnett  v.  Simpkins,  24  111.  264. 

^Calcroft  V.  Harborough,  4  C.  &  ^Zerfling  v.  Mourer,  2  Greene(Ia.), 

P.  499.  520;  Parker  v.  Elliott,  6  Munf.^87. 

■*  Leeds  v.  Cook,  4  Esp.  256.  » Bunnell  v.  Greatliead,   49  Barb. 

6  Miller  v.  Rossier,  31  Mich.  475;  106;  Smith  v.  Mastier,  15  Wend.  270; 

but  see  ruling  to  the  contrary  in  Slierwood  v.  Titman,  55  Pa.  St.  77. 

Miller  v.  Hayes,  24  Iowa,  496.  '"  Young  v.  Hoover,  4  Cr.  C.  C.  187. 


MmGATION   OF   DAMAGES.  255 

the  24tli  for  tlie  month  ending  on  that  day,  which  A  paid,  it 
was  held  in  an  action  for  mesne  profits,  that  he  was  entitled  to 
deduct  the  money  so  paid  from,  the  damages.  In  that  case  the 
payment  of  the  ground  rent  diminished  the  value  of  the  occu- 
pation to  the  defendant ;  and  having  paid  what  the  plaintiff 
must  otherwise  have  paid,  his  injur}',  for  Avhich  mesne  profits 
were  compensation,  was  to  the  amount  paid,  mitigated.^  So  a 
tenant  has  a  right  to  deduct  from  rent  all  expenses  or  taxes 
which  he  has  been  compelled  to  pay  for  the  lessor.'"^ 

The  immediate  landlord  is  bound  to  protect  his  tenant  from 
all  paramount  claims ;  and  when,  therefore,  the  tenant  is  com- 
pelled, in  order  to  protect  himself  in  the  enjoyment  of  the  land 
in  respect  to  which  the  rent  is  payable,  to  make  payments  which 
ought,  as  between  himself  and  his  landlord,  to  have  been  made 
by  the  latter,  he  is  considered  as  having  been  authorized  by  the 
landlord  so  to  apply  his  rent  due  or  accruing  due.^  Of  this  nat- 
m^e  are  not  onl}''  pa3'ments  of  ground  rent  to  the  superior  land- 
lord, but  interest  due  upon  a  mortgage  prior  to  the  lease ;  *  an 
annuity  charged  upon  the  land ;  ^  and  rates  and  taxes.^  But 
where  the  payment  of  the  ground  rent,  or  other  like  charge, 
gives  no  right  of  action  against  the  part}-  suing  for  the  rent, 
this  right  of  deduction  does  not  exist.' 

It  has  sometimes  been  held  as  a  general  rule  that  matters 
which  would  have  gone  in  bar  of  the  action,  cannot  be  given  in 
evidence  to  reduce  damages,  unless  pleaded.  Lord  Abinger,  C. 
B.,  said :  *  "  It  is  a  principle  as  old  as  my  recollection  of  West- 
minister Hall,  that  matter  of  justification  cannot  be  given  in  evi- 
dence in  an  action,  in  order  to  mitigate  damages."  The  case  was 
an.  action  for  wrongfully  discharging  the  plaintiff  from  the  de- 
fendant's service.  The  defendant  pleaded  only  payment  of 
money  into  court.  It  was  contended  in  favor  of  the  defendant 
that  he  should  be  allowed  to  show  in  mitigation  that  the  dis- 
charge was  for  misconduct,  as  under  this  issue  there  was  merely 
an  inquiry  of  damages ;  that  the  same  evidence  was  admissible 

'  Doe  V.  Hare,  2  Cr.  &  M.  145.  ^  Taylor  v.  Zamria,  6  Taunt.  524. 

^'Sapsford  v.  Fletcher,  4  T.  R.  511;  «  Baker  v.  Davis,  3  Camp.  474;  An- 

Taylor  v.  Zamria,  6  Taunt.  524;  Car-  drew  v.  Hancock,  1  B.  &  B.  37. 

ter  V.  Carter,  3  Biug.  406.  "  Graham  v.  Allsopp,  supra. 

3  Graham  v.  Allsopp,  3  Exch.  186.  « Speck  v.  PhiUips,  5  M.  &  W.  279. 

■•Johnson  v.  Jones,  9  A.  &  E.  809. 


256  LEGAI.    LIQUIDATIONS   AND   REDUCTIONS. 

as  upon  a  Avrit  of  inquiry,  after  a  judgment  by  default.  It  was 
held  properly  rejected.  Alderson,  B.,  said :  "  The  question  is 
whether  it  is  competent  to  the  defendant,  in  mitigation  of  dam- 
ao-es,  to  give  evidence  to  contradict  a  fact  admitted  on  the  rec- 
ord. If  it  were,  the  grossest  injustice  might  be  done  ;  because 
the  other  party  does  not,  of  course,  come  prepared  to  prove  the 
fact  so  admitted."  And  Maule,  B.,  said :  "  'No  question  was 
made  that  the  plaintiff  was  wrongfully  discharged ;  and  I  think 
it  was  not  competent  to  the  defendant  to  give  evidence  to  nega- 
tive that  which  is  admitted  by  the  plea.  If  it  were,  the  conse- 
quence would  follow,  that  no  defendant  would  ever  plead 
specially ;  he  would  pay  a  shilling  into  court,  and  set  up  as  many 
defenses  as  he  pleased ;  and  succeeding  in  any  one  of  them,  would 
get  a  verdict  and  his  costs.  This  would  be  setting  aside  not  only 
the  new  rules,  but  all  the  old  rules  which  required  special  plead- 
ings in  actions  of  this  nature."  ^ 

In  trespass  against  a  constable  for  arresting  the  plaintiff  and 
imprisoning  him,  the  declaration  stated  it  to  have  been  without 
reasonable  or  probable  cause  ;  the  court  said  a  constable  may 
justify  an  arrest  for  reasonable  cause  of  suspicion  alone ;  and 
in  this  respect  he  stands  on  more  favorable  ground  than  a  pri- 

'In  Watson  v.  Christie,  2  B.  &  P.  or  justified  it  on  any  ground;  that 

224,  tried  before  Lord  Eldon,  C.  J.,  much  evil  beyond  the  mere  act  had 

the  action  was  for  assault  and  bat-  been   actually  suffered,  which  evil 

tery,  and  not  guilty  plea^led.    It  was  had  been  occasioned  by  a  cause  which 

offered  to  be  shown  that  the  beating  the  defendant  admitted  he  could  not 

was  given  by  way  of  punishment  for  justify;  that  in  his  lordshiiVs  judg- 

misbehavior  on  ship-board.  Thejmy  ment,    therefore,    the   evil  actually 

were  directed  that  the  only  questions  suffered  in  consequence  of  what  was 

for  their  consideration  were  whether  not  justified,  ought  to  be  compen- 

the  defendant  was    guilty    of    the  sated  for  in  damages;  that  the  jury 

beating,    and    what    damages    the  should  give  damages  to  the  extent  of 

plaintiff    had    sustained    in    conse-  the  evil  suffered,  without  lessening 

quence  of  it;  that  although  the  beat-  them  on  account    of    the    circum- 

ing    in    question,  however  severe,  stances    under    which    it    was    in- 

niight  possibly  be  justified  on  the  flicted;  that  if  they  gave  damages 

ground  of  tlie  necessity  of  maintain-  bej'ond  compensation  for  the  injury 

ing  discipline  on  board  the  ship,  yet  actually  sustained,  they  would  give 

such  a  defense  could  not  be  resorted  too  much;  but   if  they  gave    less, 

to,  unless  put  upon  the  record,  in  they  would  not  give  enough.     See 

the  shape  of  a  special  justification;  Pajolus  v.  Holland,  3  Irish  C.  L.  533; 

that  the  defendant  had  not  said  on  Gelston  v.  Hoyt,  13  John.  561. 
the  record  that  this  was  discipline, 


MITIGATION  OF  DAJVIAGES.  25Y 

vate  person,  who  must  show,  in  addition  to  such  cause,  that  a 
felony  was  actually  committed ;  that  the  difficulty  Avas  to  de- 
termine whether  circumstances  of  suspicion  which  might  have 
been  pleaded  in  justification  were  competent  to  go  to  the  jury 
under  the  general  issue  in  mitigation  of  damages.  They  say 
the  objection  rests  on  the  rule  which  requires  matter  of  justifi- 
cation to  be  pleaded  specially.  At  the  first  blush,  one  would  not 
perceive  a  reason  to  preclude  a  party  who  had  waived  the  bene- 
fit of  a  full  defense,  from  showing  the  purity  of  his  motives  to 
shield  hun  from  exemplary  damages ;  and  there  is  in  truth  none 
except  that  the  plaintiff  is  not  apprised  by  the  pleadings  of  the 
defendant's  intention.  Yet  where  the  defendant  is  not  at  Hberty 
to  apprise  him  by  pleading  in  justification,  the  matter  is  for 
that  very  reason  allowed  to  be  given  in  evidence.  But  what- 
ever inconsistency  there  may  seem  to  be  in  point  of  principle, 
the  defendant  when  charged  with  making  an  arrest  without 
probable  cause,  may  rebut  the  charge.^ 

In  actions  for  slander,  this  rule  ^vas  adopted  long  ago  and  has 
since  been  generally  adhered  to  for  special  reasons.  These  have 
more  or  less  force  in  other  actions,  where  the  matter  sought  to 
be  proved  in  mitigation  would  be  a  serious  surprise  to  the  plaint- 
iff if  introduced  at  the  trial  witliout  any  notice  in  the  plead- 
ings. Under  the  common  law  system,  matter  of  mitigation 
which  could  not  be  used  in  bar  of  the  plaintiff's  cause  of  action, 
nor  of  any  severable  part  of  it,  was  for  that  reason  provable 
mthout  being  pleaded.  But  under  this  rule,  matter  which  could 
have  been  made  available  in  bar  by  plea,  is  not  necessarily  ad- 
missible in  mitigation.  The  admission  of  such  a  defense  is  not 
within  the  reason  and  necessity  of  that  rule.  Courts  may, 
therefore,  properly  exercise  a  discretion  to  require  notice  of 
some  sort,  as  they  do  of  defenses  by  way  of  recoupment.  It  is 
believed,  however,  not  to  be  a  general  rule,  at  least  in  this  coun- 
try, except  in  actions  for  libel  and  slander,  that  matter  which 
might  be  set  up  in  bar,  and  is  not  so  pleaded,  cannot  be  proved 
in  mitigation.  The  existence  of  such  a  rule  has  been  denied  in 
'New  York.2  Judge  Selden  said  :  "  It  was  never  any  objection 
to  evidence  in  mitigation,  that  under  a  different  state  of  the 

1  Russell  V.  Shuster, 8  W.  &  S.  308.  -Bush  v.   Prosser,  11  N.  Y.  347, 

302.  3G5. 
Vol.  I  — 17 


258  LEGAL   LIQUIDATIONB   AND   KEDUCTIONS. 

pleadings  it  would  amount  to  a  full  defense."  And  again :  "  It 
seems  to  have  been  supposed  that  there  was  some  sound  legal 
objection  to  admitting  proof  of  facts  under  the  general  issue, 
in  mitigation  merely,  which,  if  specially  pleaded,  would  amount 
to  a  full  defense.  But  there  is  not,  and  never  was,  any  such 
objection.^ 

In  Vermont,  it  has  been  held,  in  trover,  after  a  default,  mat- 
ter which  shows  that  the  plaintiff  had  no  right  to  recover,  and 
which  might  have  been  given  in  evidence  under  the  general 
issue,  may  avail  the  defendant  in  mitigation  of  damages.^ 

In  a  late  case  in  Connecticut,  in  a  hearing  for  the  ascertain- 
ment of  damages,  after  a  default,  in  an  action  for  neghgence  in 
setting  fire  by  which  property  of  the  plaintiff  was  jinjured  to  the 
amount  of  four  hundred  dollars,  the  defendants  were  allowed  to 
introduce  evidence  for  the  purpose  of  reducing  the  damages  to 
a  nominal  sum,  that  they  were  guilty  of  no  negligence  what- 
ever. The  plaintiff  objected  to  the  reception  of  the  evidence  on 
the  ground  that  the  defendants,  by  their  neglect  to  traverse  the 
declaration,  and  by  suffering  a  default,  conclusively  admitted 
that  they  were  guilty  of  negligence,  sufficient  for  the  plaint- 
iff to  maintain  his  action;  and  that  in  a  case  like  this  of 
damage  to  property,  incapable  of  division,  the  least  sum  the 
com't  could  assess  as  damages,  consistent  with  the  declaration, 
was  the  actual  damage  done  to  the  property.  The  cornet  said : 
''  From  a  time  early  in  the  history  of  the  jurisprudence  of  this 
state,  the  law  has  been,  that  where,  in  an  action  on  the  case  for 
the  recovery  of  unliquidated  damages,  and  the  defendant  has 
suffered  a  default,  that  is,  has  omitted  to  make  any  answer,  the 

1  In  the  subsequent  case  of  Mc-  to  reduce  the  amount  of  the  plaint- 

Kyring  v.  Bull,  16  N.  Y.  297,  304,  iff's  claim,  but  in  many  cases,  facts 

the  same  learned  judge  said:    "As  showmg  that  the   plaintiff  had  in 

the  code  contains  no  express  rule  on  truth  no  claim  whatever.    It  was  not 

the  subject  of  mitigation,  except  in  necessarily  an  objection  to  matter  of- 

a  single  class  of  actions,  this  ques-  fei-ed  in  mitigation,  that  if  properly 

tion  cannot  be  properly  determined  pleaded  it  would  have  constituted  a 

without  a  recurrence  to  the  princi-  complete  defense."    See  Smithers  v, 

pies  of  the  common  law.     By  those  Harrison,    1  Ld.  Raym.  72;    Abbot 

principles,   defendants    in    actions  v.  Chapman,  2  Lev.  81;  NichoU  v. 

sounding  in  damages  were  permitted  Williams,  2  M.  &  W.  758. 

to   give  in  evidence,  in  mitigation,  -  Collins  v.  Smith,  16  Vt.  9. 
not  only  matters  having  a  tendency 


MITIGATION   OF   DAMAGES.  250 

assessment  of  damages  has  been  made  by  the  court  without  the 
intervention  of  a  jmy ;  also,  that  by  his  omission  to  deny  them, 
the  defendant  is  held  to  have  admitted  the  truth  of  all  well 
pleaded,  material  allegations  in  the  declaration,  and  the  conse- 
quent right  of  the  plaintiff  to  a  judgment  for  a  limited  sum,  for 
nominal  damages,  and  costs,  without  the  introduction  of  evi- 
dence. The  defendant,  standing  silent,  the  law  imputes  this  ad- 
mission to  him ;  but  it  does  it  with  this  limitation  upon  its  mean- 
ing and  effect ;  it  does  it  for  this  special  purpose  and  no  other ; 
and  our  court3  have  repeatedly  explained  that  the  admission 
founded  on  a  default  is  not  an  admission  of  which  the  writers  upon 
the  law  of  evidence  treat.  The  silent  defendant,  having  been 
subjected  to  a  judgment  for  nominal  damages,  from  wliich  no 
proof  can  reheve  him,  the  default  has  practically  exhausted  its 
effect  upon  the  case ;  for,  if  the  plaintiff  is  unwilling  to  accept 
this  judgment,  evidence  is  received  on  his  part  to  raise  the  dam- 
ages above,  and  on  the  part  of  the  defendant  to  keep  them 
down  to  that  immovable  base  of  departure,  the  nominal  point, 
precisely  as  if  the  general  issue  had  been  pleaded ;  and  although 
the  evidence  introduced  by  the  latter  has  so  much  force  that  it 
would  have  reduced  them  to  nothing,  but  for  the  barrier  inter- 
posed by  the  default,  it  cannot  avail  to  deprive  the  plaintiff 
of  his  judgment ;  in  keeping  that,  the  law  perceives  that  he  has 
all  that  the  truth  entitles  liim  to,  and  therefore  refuses  to  hear 
any  objection  from  him.  .  »  .  The  plaintiff  argues  that  his 
case  differs  from  ...  all  others  which  have  gone  before  it, 
in  that  his  damages  are  entire  and  indivisible,  and  arise  from  a  sin- 
gle act  of  the  defendant.  But  the  destruction  of  a  life  would 
seem  to  be  an  entire  and  indivisible  wrong  ^  in  as  complete  a 
sense  as  the  destruction  of  the  plaintiff's  grass,  fence  and  wood ; 
a  single  blow  killed  the  man,  a  single  spark  fired  the  grass.  The 
rule  cannot  be  at  all  affected  by  the  question  as  to  whether  the 
injury  is  inflicted  upon  person  or  property.  In  either  case,  at 
the  outset,  the  damages  are  uncertain ;  in  both  they  are  made 
certain  by  the  same  tribunal,  governed  b}^  the  same  rules,  in- 
formed by  evidence  of  the  same  character,  received  in  the  same 
order.    An  injury  to  the  person  may  be  the  breaking  of  a  finger 

1  Carey  v.  Day,  36  Conn.  153. 


260  LEGAIi  LIQtriDATIONS   AlID  EEDTTCTIONS. 

or  the  tearing  of  both  arms  from  the  body ;  an  injury  to  prop- 
erty may  be  the  destruction  of  a  tree  or  of  a  forest.  It  is  of  course 
a  much  more  difficult  and  dehcate  taslv  to  reduce  to  the  standard 
of  coin  tlie  value  of  a  leg  or  an  arm,  than  to  determine  the  mar- 
ket price  of  a  cord  of  wood,  or  for  a  standing  tree  of  given  di- 
mensions ;  nevertheless,  probably  in  every  week,  some  one  of  the 
numerous  courts  of  the  country  find  for  some  plaintiff,  presum- 
ably the  money  value  of  a  lost  hmb.  The  judicial  system  has 
but  one  balance ;  in  this  is  weighed  every  loss,  even  that  of  life."  ^ 

In  Maryland  it  has  been  held,  in  an  action  of  trespass  for  an 
alleged  injury  to  the  plaintiff's  wall  by  inserting  joists  into 
it,  evidence  was  admissible  under  the  general  issue  of  a  pre- 
vious license,  in  mitigation,  which  would  have  been  a  bar  if 
specially  pleaded.^  Also,  that  a  defendant,  in  mitigation  of  dam- 
ages for  assault  and  battery,  may  rely  on  the  res  gestm;  although 
if  pleaded  it  would  amount  to  a  justification  and  require  a 
special  plea.' 

In  Yirginia,  in  an  action  of  trespass  for  taking  a  slave  from 
the  plaintiff's  close,  it  was  held  that  on  a  plea  of  not  guilty,  evi- 
dence might  be  received  in  mitigation  that  the  title  to  the  slave 
was  in  the  defendant.* 

5.  Payments  made  either  hefore  or  after  sioit  brought,  may  be 
proved  in  mitigation  of  damages,  but  not  in  bar,  without  plea, 
nor  under  the  general  issue.^  And  the  same  rule  is  held  in  Cal- 
ifornia under  the  code.^  If  full  payment  is  made  after  suit 
brought,  and  is  accepted  for  the  debt  and  costs,  the  defendant 

Batchelder  v.   Bartholomew,  44  v.  Bull,  16  N.  Y.  297.     In  Plevin  v. 

Conn.  494;  Saltus  v.  Kipp,  12  How.  Hensball,  10  Bing.   24,  after  a  ver- 

Pr.  342.  diet  for  the  plaintiff  in  trover,  the 

2  Hamilton  T.  Windolk,  36  Md.  301.  goods  were  seized  in  the  hands  of 

3  Byers  v.  Horner,  47  Md.  23.  the  defendant  for  rent  which  the 
4BuUard  v.    Leavett,  5  Call,  531;  plaintiff  was  liable  to  pay;  the  de- 
see  also  Moore  v.  McNairy,  1  Dev.  fendant  having  paid'  the  rent,  the 
319.  court  allowed  him  to  deduct   the 

5  Dana  v.  Sessions,  46  N.  H.  509;  amount  from  the  verdict  found  for 

Shirley  v.  Jacobs,  2  Bing.  N.  -C.  88;  the  plaintiff;  but  see  BuU  v.  Flower, 

Lediard  v.   Bencher,    7   C.  &  P.  1;  39  Conn.  462. 

Britton  V.  Bishop,  11  Vt.  70;  Bishop  evVitmore    v.    San  Francisco,  44 

V.   Lucas,  6  Ind.   26;  Moore  v.   Mc-  Cal.  294,  300;  Davanay  v.  Eggenhoff, 

Nairy,  1  Dev.   319;  Nichols  v.  Will-  43  Cal.  395;  Friesch  v.  Coler,  21  Cal. 

lams,  2  M.  &  W.  758;  see  McKyring  14;  Brown  v.  Orr,  29  Cal.  130. 


RECOUPMENT   AND   CXDUNTERCLAIM.  261 

will  be  entitled  to  a  verdict.'  It  is  necessary  that  the  payment 
be  made  to  cover  the  costs  which  have  accrued.-  And  the  pay- 
ment should  be  pleaded  to  the  tother  maintenance  of  the 
action.^ 

Section  4. 

EECOTIPMENT  AND  COUNTERCLAIM. 

Definition  and  Jiisfory  of  recoupment  —  This  defense  founded  on  the 
natural  equity  that  connected  demands  should  compensate  each  other, 
and  intended  to  prevent  circuity  of  action  —  It  is  not  a  defense  of  fail- 
ure of  consideration  —  Summary  of  the  distinguishing  features  of  re- 
co^ipment  —  Defendant's  demand  must  he  a  valid  cause  of  action  —  It 
must  arise  from  the  same  contract  or  transaction  as  the  plaintiff's 
case —  Not  necessary  that  demand  on  either  side  he  liquidated,  or  that 
hoth  he  of  the  same  nature  —  Recoupment  available  only  as  a  defense, 
surplus  not  recoverable  except  by  statute  —  Defendant  has  election  to  re- 
coup or  bring  separate  action —  When  defendant  seeks  to  recoup  he  is 
an  actor,  has  the  burden  of  proof,  and  same  measure  of  damages  as  if 
he  sued  in  separate  action  —  2Iust  give  notice  of  recoupment  in 
pleading. 

The  term  recoujpment^  derived  from  a  French  word,  recov,2?er, 
to  cut  again,  signifies  in  the  law,  a  cutting  off,  and  keeping 
back  a  part  of  the  plaintiff's  claim,  in  satisfaction,  by  set-off,  of 
cross  demands  of  the  defendant  growing  out  of  the  same  con- 
tract or  transaction  on  which  the  plaintiff's  claim  is  founded. 
The  same  thing  is  meant  by  defalcation  and  discount.  Liter- 
ally understood,  recoupment  would  include  mere  mitigation  of 
damages,  and  the  instances  of  this  defense  in  the  old  books  are 
mostly  of  that  nature.*  In  the  endeavor  to  reduce  the  contro- 
versy to  a  single  point  or  issue,  very  httle  scope  was  given,  by 
the  early  common  laAV,  to  defenses  which  rested  on  the  princi- 
ple of  allowing  cross  claims  in  favor  of  the  defendant. 

At  one  time  it  was  doubted  that  in  an  action  on  a  quantum 
meruit  for  services,  the  defendant  was  entitled  to  reduce  the 
damages  by  showing  that  the  work  had  not  been  well  done.^ 

1  Thome  v.  Boast,  13  Q.  B.  808;  ^Dyer,  2;  8  Vin.  Abr.  o5&-7; 
Bendit  T.  Annesley,  27  How.  Pr.  184.  Croke's   Eliz.  631;    Taylor    v.   Beal, 

2  Belknap  V.  Godfrey,  22  Vt.  288.  Croke's  Eliz.  222;  Shetle worth  v.  Ne- 

3  Thome  v.  Boast,  supra;   Dana  v.  ville,  1  T.  R.  454. 

Sessions,  supra;  Bank  v.  Brackett,  4         '  Farnsworth  v.  Garrard,  1  Camp. 
N.  H.  558.  38. 


262  LEGAL   LIQiriDATIONS   AND   KEDUCTIONS. 

The  allowance  of  such  defenses  was  the  result  of  a  consultation 
of  the  judges  in  England.  In  an  action  of  that  character  Lord 
Ellenborough  said :  "  This  is  an  action  founded  on  a  claim  for 
meritorious  services.  The  plaintiff  is  to  receive  what  he  de- 
serves. It  is  therefore  to  be  considered  how  much  he  deserves, 
or  if  he  deserves  anything.  If  the  defendant  has  derived  no 
benefit  from  his  services,  he  deserves  nothing,  and  there  must 
be  a  verdict  against  him.  There  was  formerly  considerable 
doubt  on  this  point.  Mr.  Justice  BuUer  thought  (and  I,  in  def- 
erence to  so  great  an  authority,  have,  at  times,  ruled  the  same 
way),  that  in  cases  of  this  kind,  a  cross  action  for  the  negli- 
gence was  necessary ;  but  that  if  the  work  be  done  the  plaintiJBf 
must  recover  for  it.  I  have  since  had  a  conference  with  the 
judges  on  the  subject,  and  now  I  consider  this  as  the  correct 
rule :  that  if  there  has  been  no  beneficial  service,  there  shall  be 
no  pay ;  but  if  some  benefit  has  been  derived,  though  not  to 
the  extent  expected,  this  shall  go  to  the  extent  of  the  plaintiff's 
demand,  leaving  the  defendant  to  his  action  for  the  neghgence.^ 
He  also  remarked  that  where  a  specific  sum  has  been  agreed  to 
be  paid  by  the  defendant,  the  plaintiff  may  have  some  ground 
to  complain  of  surprise,  if  evidence  be  admitted  to  show  that 
the  work  and  materials  provided  were  not  worth  so  much  as 
was  contracted  to  be  paid;  because  he  may  only  come  pre- 
pared to  prove  the  agreement  for  the  specified  sum,  and  the 
work  done ;  unless  notice  be  given  to  him  that  the  payment  is 
disputed  on  the  ground  of  the  inadequacy  of  the  work  done. 
But  where  the  plaintiff  comes*  into  court,  upon  a  quantum  nier- 
tdt,  he  must  come  prepared  to  show  that  the  work  done  was 
worth  so  much,  and  therefore  there  can  be  no  injustice  in  suf- 
fering the  defense  to  be  entered  into  even  without  notice."  ^  The 
right  to  make  such  defenses  is  no  longer  in  question ;  the  plaint- 
iff must  show  his  performance  of  a  condition  precedent,  as  a 
basis  of  recovery,  either  of  an  agreed  sum  or  on  a  quantum 
meTuit  /  and  there  is  included  in  the  mere  right  to  make  a  de- 
fense, the  right  to  rebut  the  evidence  of  performance ;  and, 
where  the  value  is  not  fixed  by  agreement,  the  amount  reason- 
ably due  for  such  performance.  In  such  cases,  to  the  extent 
that  the  plaintiff's  recovery  proceeds  on  proof  of  performance,  or 

1  Bosten  v.  Butler,  7  East,  479.  2  id. 


EECOUPMENT   AND   COUNTEKCLArM:.  263 

its  reasonable  value,  the  defendant,  if  he  dispute  it,  or  the  value 
shown  by  the  plaintiff,  must  defend,  or  lose  all  right  to  dispute 
the  conclusions  so  arrived  at,  or  to  redress  for  the  deficiencies  of 
the  plaintiff's  performance.^  The  direct  defense  by  negativing  the 
facts  which  the  plaintiff  assumes  to  prove  to  measure  his 
compensation,  or  those  which,  on  the  theory  of  his  action,  enter 
into  the  price  and  fix  the  amount  of  damages,  is  not  recoup- 
ment ;  2  nor  is  a  defense  which  consists  of  a  denial  of  facts 
which  the  plaintiff  must  prove  to  maintain  his  action,  as  the 
performance  of  a  condition  precedent.^ 

The  defense  wliich  is  allowed  under  the  name  of  recoupment 
is  not  a  keeping  back  of  a  part  of  the  plaintiff's  prima  facie 
damage,  on  the  case  he  seeks  to  establish,  by  evidence  of  the 
character  explained  under  the  title  of  mitigation  of  damages ; 
but  a  reduction  of  the  plaintiff's  recovery,  by  the  allowance 
against  him  in  his  action,  of  damages  due  the  defendant  on  a 
substantive  cause  of  action  in  his  favor,  growing  out  of  the  same 
transaction  on  which  the  plaintiff's  claim  or  demand  arises. 

Until  near  the  close  of  the  last  century,  the  strict  rules  of  the 
common  law  as  to  the  independency  of  covenants,  and  the  en- 
tirety of  conditions,  were  strenuously  and  rigidly  enforced ;  and 
a  defendant  sustaining  damages,  from  the  breach  of  any  counter 
or  reciprocal  obligation  in  the  same  contract,  was  put  to  his 
cross  action,  unless  he  had  made  the  performance  of  such  obli- 
gation strictly  a  condition  precedent  to  his  undertaking  to  the 
})laintiff.*  These  rules  were  often  attended  with  hardship,  as 
where  the  plaintiff  was  insolvent  and  unable  to  respond  after- 
wards or  in  a  separate  action.  Thus,  in  an  action  for  breach  of 
a  covenant  to  recover  unliquidated  damages,  the  defendant 
pleaded  set-off  of  like  damages  for  plaintiff's  breach  of  the 
covenants  in  the  same  instrument.  This  defense  was  urged  on 
grounds  which  now  support  recoupment.  The  defense,  how- 
ever, was  rejected,  "without  any  allusion  to  a  right  of  recoup- 
ment, because  the  statute  of  set-offs  only  apphed  to  mutual 


'  Kellogg  V.  Denslow,  14  Conn.  411;  ^  Thompson  v.  Richards,  14  Mich. 

Davis  V.  TaUcott,  13  N.  Y.  184.  173;  Stoddard  v.  Tread  well,  36  Cal. 

2  Steamboat  Wellsville  v.  Guise,  3  294. 

Ohio  St.  333.  47  Am.  L.  Review,  393. 


264  LEGAL  LIQtriDATIONS  AITD  EEDUOTIONS. 

debts,  which  did  not  include  demands  for  unliquidated  damage.^ 
Until  this  species  of  defense  had  become  firmly  estabhshed,  the 
severe  adherence  to  the  old  practice  was  in  no  cases  more 
marked  than  in  actions  between  landlord  and  tenant;  —  the 
former  was  allowed  to  collect  his  rent,  notwithstanding  his  cov- 
enant to  repair  remained  unperformed,  and  even  if  he  was  him- 
self insolvent.^  The  doctrine  of  recoupment  has  attained  its 
growth  since  the  Kevolution ;  and  the  courts  of  this  country 
and  of  England  have  not  given  it  the  same  expansion;  nor 
has  it  made  the  same  progress  in  all  the  states  of  this  Union. 

In  New  York  the  defense  was  at  first  admitted  in  mitigation 
of  damages  where  there  was  fraud  in  respect  to  the  considera- 
tior^ ;  ^  next  Avliere  there  was  breach  of  warranty  without  fraud.* 
At  this  time  it  elicited  more  discussion  and  received  a  more 
emphatic  judicial  recognition.  Marcy,  J.,  said :  "  From  an 
examination  of  the  cases,  I  am  satisfied  that  in  those  where  the 
damages  arising  from  a  breach  of  warranty,  in  the  sale  of 
chattels,  have  been  allowed  to  be  given  in  evidence  by  the  de- 
fendant to  reduce  the  amount  of  recovery  below  the  stipulated 
price,  the  decisions  of  the  court  have  not  proceeded  upon  the 
ground  that  the  express  contracts  were  void  by  reason  of  fraud, 
and  a  recovery  had  upon  a  quantum  meruit  or  quantum  valibat, 
upon  implied  contract ;  but  upon  a  principle  somewhat  differ- 
ent from  those  adverted  to  in  this  case  m  the  court  below ;  upon 
a  principle  which  has  of  late  years  been  gaining  favor  with 
courts,  and  extending  the  range  of  its  operations.  Such  a  de- 
fense is  admitted  to  avoid  circuity  of  action;"  hence  he  insisted, 
and  tlie  court  decided,  that  damages  arising  from  breach  of 
warranty  should  be  allowed  to  reduce  the  recovery  as  well 
where  there  was  no  fraud  as  where  there  was.  So  true  was  it 
that  this  new  principle  of  avoiding  circuity  of  action  "was 
gaining  favor  with  the  courts,  and  extending  the  range  of  its 
operations,"  that  the  discrepancies,  at  any  given  time,  to  be 
noticed,  between  the  decisions  of  comets  of  different  states. 


iHowletv.  Strickland,  1  Cowp.  56.         ^Beecker  v.  Vroom,  13  John.  303. 

2Taylor'sL.  &  T.  §  373;  7  Am.  L.         *  Spalding      v.     Vandercook,      3 

Eeview,  392.  Wend.  431;    McAllister  v.  Eeab,  4 

Wend.  484. 


EECOUPMENT   AXD   COUlifTERCLAIM.  265 

have  indicated  a  relative  progress  rather  than  a  permanent 
disagreement.^ 

This  defense  is  founded  on  the  natural  equity  that  mutual  de- 
mands, growing  out  of  the  same  transaction,  should  compensate 
each  other,  by  deducting  the  less  from  the  greater,  and  treating 
the  diiference  as  the  only  sum  justly  due.^  It  is  also  founded 
on  the  pohcy  and  convenience  of  settling  an  entk-e  controversy 
m  one  action,  where  it  can  be  justly  done;  thus  saving  needless 
delay  and  htigation.  By  proper  pleading,  in  the  apphcation  of 
the  doctrine  of  recoupment,  the  court  may  look  through  the 
whole  contract,  treating  it  as  an  entu^ety,  and  the  things  done 
and  stipulated  to  be  done  on  each  side,  as  the  consideration  for 
the  things  done  and  stipulated  to  be  done  on  the  other.  When 
either  partj^^  seeks  redress  for  the  breach  of  stipulations  in  his 
favor,  the  grievances  on  each  side  are  summed  up,  instead  of  those 
only  on  the  plaintiff's  side ;  a  balance  is  struck,  and  the  plaint- 
iff can  recover  onl}''  when  that  balance  is  in  liis  favor.^  Some 
confusion  has  arisen  from  treating  this  defense  as  one  of  failm'e 
of  consideration.'*  In  an  Alabama  case,^  the  plaintiff  sued  on 
a  note  which  had  been  given  for  a  clock,  sold  by  him  to  the  de- 
fendant, with  warranty  that  it  would  keep  good  time.  The 
clock  was  shown  to  be  worthless  as  a  time-piece ;  but  the  case 
alone  was  worth  more  than  a  nominal  sum,  and  it  was  held  that 
the  plaintiff  might  claim  an  abatement  on  the  note  to  the  amount 
of  damagp  that  he  had  sustained.     Having  kept  the  clock,  how- 

iThe    principle    of    recoupment,  ^ComparePerley  v.  Balch,  23Pick. 

under  various  names,  has  been  gen-  282;  Composet  v.  Johnson,  6  Blackf. 

erally  adopted  in  the  general  juris-  59;  Herbert  v.   Ford,  29  Me.    546; 

prudence  of  this  country,  except  in  Drew  v.  Fowle,  27  N.  H.  412;  "Wheat 

North  Carolina.     And  it  is  believed  v.  Dotson,  12  Ark.  699;  Van  Buren 

that  it  is  now  universally  in  force  v.  Digges,  11  How.  U.  S.  461:  Van 

either     by    statute    or     otherwise;  Epps  v.  Harrison,  5  Hill,  63;  Withers 

though  in  some  of  the  states,  in  con-  v.  Greene,  9  How.  U.  S.  212;  Wynn 

troversies  at  law,  where  title  to  real  v.  Hiday,  2  Blackf.  123;  Elminger  v, 

estate  is  involved,  the  doctrine  is  Drew,  4  McLean,  388;  "Washburn  v. 

not  apphed.  Pecott,     3    Dev.     390;    Pulsifer    v. 

2  Green  v.  Farmer,  4  Burr.  2214,  Hotchkiss,  12  Conn.  234;  Avery  v. 
2220;  Read  v.  McAllister,  8  Wend.  Brown,31  Conn.  398;  Peden  v.  Moore, 
109,  115;  Myers  v.  Estell,  47  Miss.  4,  1  Stew.  &  Port.  71. 

17-21.  5  Davis  v.  Dicky,  23  Ala.  848. 

3  Luffburrow  V.  Henderson,  30  Ga. 
482;  Myers  v.  EsteU,  47  Miss.  4. 


266  LEGAL  LIQUIDATIONS   AOT)  REDUCTIONS. 

ever,  judgment  must  go  against  him  for  what  it  was  actually 
worth.  By  this  decision,  the  breach  of  warranty  avoided  the 
special  contract,  and  recovery  proceeded  on  a  quantum  meruit.^ 
It  is  in  accordance  with  the  English  rule ;  the  damages  are  re- 
duced by  showing  how  much  less  the  article  is  worth  by  reason 
of  the  breach  of  warranty ;  or,  in  other  vrords,  the  plaintiff  hav- 
ing failed  to  perform  the  agreement  wliich  was  the  consideration 
of  the  defendant's  promise,  the  judicial  inquiry  is,  what  is  the 
property  or  service  which  the  defendant  has  received,  worth. 
Thus,  A  sold  B  for  95^.,  two  pictures,  representing  them  to  be 
"  a  couple  of  ponsins ;"  they  were  in  fact  not  originals,  but  very 
excellent  copies.  B  did  not  offer  to  return  them,  and  it  was 
held  that  if  the  jury  thought  that  B  believed  from  the  represen- 
tation of  A,  that  they  were  originals,  he  Vv^as  not  bound  to  pay  the 
price  agreed ;  but  that,  as  he  kept  them,  he  was  hable  to  pay  such 
sum  as  the  jmy  might  consider  to  be  their  value.^  In  an  English 
case,^  Parke,  B.,  said :  "  Formerly  it  was  the  practice  where  an 
action  was  brought  for  an  agreed  price  of  a  specific  chattel  sold 
with  a  warranty,  or  of  work  which  was  to  be  performed  accord- 
ing to  contract,  to  allow  the  plaintiff  to  recover  the  stipulated 
sum,  leaving  the  defendant  to  a  cross  action  for  breach  of  the 
warranty  or  contract ;  in  which  action,  as  well  the  difference 
between  the  price  contracted  for  and  the  real  value  of  the  arti- 
cle or  of  the  work  done,  as  any  consequential  damage,  might 
have  been  recovered ;  and  this  course  was  simple  and  .consistent. 
In  the  one  case,  the  performance  of  the  warranty,  not  being  a 
condition  precedent  to  the  payment  of  the  price,  the  defendant, 
who  received  the  chattel  warranted,  has  thereby  the  property 
vested  in  him  indef  easibly,  and  is  incapable  of  returning  it  back ; 
he  has  all  he  stipulated  for,  as  the  condition  of  paying  the  price, 
and  therefore  it  was  held  that  he  ought  to  pay  it,  and  seek  his 
remedy  on  the  plaintiff's  contract  of  warranty.  In  the  other 
case,  the  law  appears  to  have  construed  the  contract  as  not  im- 
porting that  the  performance  of  every  portion  of  the  work  should 
be  a  condition  precedent  to  the  payment  of  the  stipulated  price ; 

Harmon  v,  Sanderson,  6  S.  &  M.  843;  Poulton  v.  Lattimore,  9  B.  &  C. 

41.  259;  Street  v.  Blay,  2  B.  &  Ad.  456; 

2Lormi  v.  Tucker,  4  C.  &  P.  15;  Mondel  v.  Steel,  8  M.  &  W.  858. 

Disenhanberg  v.  Buchman,  5  C,  &  P.  ^  Mondel  v.  Steel,  supra. 


EECOUPMENT   AND   COHNTEKCLAIM.  267 

otherwise,  the  least  deviation  would  have  deprived  the  plaintiff 
of  the  whole  price ;  and  therefore  the  defendant  is  obliged  to 
pay  it,  and  recover  for  any  breach  of  contract  on  the  other  side. 
But  after  the  case  of  Basten  v.  Butter,^  a  different  practice, 
which  had  been  partially  adopted  before  in  the  case  of  King  v. 
Boston,-  began  to  prevail,  and  being  attended  witli  much  practi- 
cal convenience,  has  been  since  generally  followed ;  and  the  de- 
fendant is  now  permitted  to  show  that  the  chattel,  by  reason  of 
the  non-compKance  with  the  warranty  in  the  one  case,  and  the 
work  in  consequence  of  the  non-performance  of  the  contract  in 
the  other,  were  diminished  in  value.^  The  same  practice  has  not, 
however,  extended  to  aU  cases  of  work  and  labor,  as  for  instance 
that  of  an  attorney,*  unless  no  benefit  whatever  has  been  de- 
rived from  it ;  nor  is  an  action  for  freight.-^  It  is  not  so  easy  to 
reconcile  these  deviations  from  the  ancient  practice  with  princi- 
ple, in  those  j)articular  cases  above  mentioned,  as  it  is  in  those 
where  an  executory  contract,  such  as  this,  is  made  for  a  chattel, 
to  be  manufactured  in  a  particular  manner,  or  goods  to  be  deliv- 
ered according  to  a  sample ;  ^  where  a  party  may  refuse  to  re- 
ceive or  may  retm'n  in  a  reasonable  time,  if  the  article  is  not 
such  as  bargained  for ;  for  in  these  cases  the  acceptance  or  non- 
return affords  evidence  of  a  new  contract  on  a  quantum  valebat ; 
whereas,  in  case  of  a  dehvery  with  a  warranty  of  a  specific  chat- 
tel, there  is  no  power  of  returning,  and  consequently  no  ground 
to  imply  a  new  contract ;  and  in  some  cases  of  work  performed, 
there  is  difficulty  in  finding  a  reason  for  such  a  presumption. 
It  must,  however,  be  considered,  that  in  all  these  cases  of  goods 
sold  and  delivered  with  a  warranty,  and  work  and  labor,  as  weU 
as  the  case  of  goods  agreed  to  be  supphed,  according  to  a  con- 
tract, the  rule  which  has  been  found  so  convenient  is  established ; 
and  that  it  is  competent  for  the  defendant,  in  all  of  these,  not  to 
set  off,  by  a  proceeding  in  the  nature  of  a  cross  action,  the 
amount  of  damages  which  he  has  sustained  by  breach  of  the 
contract ;  but  simply  to  defend  himself  by  showing  how  much 
less  the  subject  matter  of  the  action  was  worth,  by  reason  of  the 

1 7  East,  479.  4  Templer  v.   McLachlan,  3  T.  R. 

27  East,  481,  note.  136. 

8Kist  V.  Atkiusou,   2  Camp.  64;  sShielsv.  Davies,  4  Camp.  119. 

Thorntou  v.  Place,  1  M.  &  Rob.  318.  GGermaine  v.  Burton,  3  Stark.  32. 


268 


LEGAL    LIQUIDATIONS    AJ^D   KEDUCTIONS. 


breach  of  contract ;  and  to  the  extent  that  he  obtains,  or  is  capa- 
ble of  obtaining,  an  abatement  of  price  on  that  account,  he  must 
be. considered  as  having  received  satisfaction  for  the  breach  of 
the  contract ;  and  is  precluded  from  recovering  in  another  action 
to  that  extent ;  but  no  more."  The  defendant  was  not  entitled 
to  show  damages  resulting  from  such  breach,  nor  the  breach  of 
any  other  stipidation.^ 


1  Francis  v.  Baker,  10  A.  &  C.  642; 
Bartlett  v.  Holmes,  13  C.  B.  630. 

In  McAllister  v.  Reab,  4  Wend. 
490,  the  theory  of  recoupment  is 
thus  discussed  by  Marcy,  J. :  "  Upon 
what  principle  are  the-  damages  for 
the  breach  of  warranty  allowed  in  a 
case  where  tliere  is  fraud  to  be  given 
in  evidence  to  reduce  the  recovery 
below  the  stipulated  price  ?  Not  on 
the  ground  of  (statutory)  set-off,  be- 
cause these  damages  are  unliqui- 
dated. Is  it  upon  the  ground  that 
the  contract  is  destroyed  by  the 
fraud  ?  If  it  is  rendered  void,  upon 
what  principle  can  the  vendor  re- 
cover at  all  ?  I  know  it  has  been 
said  he  recovers  upon  a  quantum 
meruit  or  quantum  valebat;  but  if 
there  was  no  contract  by  reason  of 
his  fraud,  there  was  no  sale;  no 
l^assing  of  title.  Can  an  implied 
sale  be  set  up  in  lieu  of  the  express 
one?  Tliis,  I  think,  may  well  be 
doubted,  although  the  express  con- 
tract may  be  void.  The  case  of 
Bleecker  v.  Vrooman  (13  John.  302) 
seems  to  have  been  put  on  the 
ground  that  the  sale  is  valid.  The 
language  of  the  court  does  not 
countenance  the  idea  that  the  ques- 
tion in  tliat  case  was  the  mere  value 
of  the  horse.  It  is  tliere  intimated 
that  a  different  rule  no  w^  prevails 
from  what  formerly  governed, which 
commends  itself  to  the  court,  be- 
cause it  is  calculated  to  do  final  and 
complete  justice  between  the  parties, 
most  expeditiously  and  least  expen- 
sively; but  if  the  parties  were  pro- 


ceeding ^vithout  regard  to  the  ex- 
press contract  upon  an  implied  one, 
and  were  only  establishing  the  true 
value  of  the  horse,  there  was  no 
new  rule,  and  the  language  of  the 
court  was  not  very  appropriate  to 
the  question  before  them.  In  the 
case  of  Leggett  v.  Cooper  (2  Starkie 
N.  P.  103),  where  the  counsel  for  the 
defendant  resisted  the  recovery  on  a 
contract  for  the  sale  of  hops  on  ac- 
count of  fraud.  Lord  Ellenborough 
said,  '  if  there  is  no  contract  for  the 
sale  of  the  goods  at  the  stipulated 
price,  there  is  no  contract  upon  the 
quantum  meruit  for  goods  sold  and 
delivered.'  The  action  in  the  case 
of  Frisbee  v.  Hoffuagle  (11  John. 
50)  was  on  a  note  for  the  considera- 
tion of  a  deed  with  warranty  for 
land.  The  defense  was,  that  the 
vendor  had  no  title,  and  it  was  al- 
lowed to  i:»revaLl,  not  upon  the 
ground  that  the  contract  of  sale  was 
invalid  by  reason  of  fraud,  but  for 
the  purpose  of  avoiding  circuity  of 
action.  The  decision  in  the  case  of 
Spaulding  v.  Vandercook  (2  Wend. 
431)  does  not,  I  apprehend,  jsroceed 
on  the  ground  of  fraud  alone.  The 
consideration  of  the  note  was  the 
fulfilment  of  the  contract  to  deliver 
barrels.  If  the  whole  contract  was 
cut  up  by  the  fraudulent  conduct  of 
the  plaintiff,  the  note  vv^as  entirely* 
without  consideration;  but  it  was 
not  so  considered.  So  in  the  case  of 
Burton  v.  Stewart  (3  Wend.  236), 
there  was  fraud  in  the  sale  of  the 
horse,  yet  the  note  given  on  the  sale 


RECOUPMENT   AND   COTJNTEKCLAIM. 


269 


It  is  true,  that  the  plaintiff's  breach  of  stipulations  in  favor  of 
the  defendant  impairs  the  consideration  of  his  agreement  in 
favor  of  the  plaintiff;  but  the  defense  of  recoupment  is  not 
based  on  the  principle  of  treating  the  defendant  as  relieved 


■was  not  adjudged  to  be  without  con- 
sideration. The  contract  was  broken, 
but  it  had  a  valid  existence;  and  the 
coui't  entertained  no  doubt  in  that 
case  that  if  there  had  been  a  proper 
notice,  the  amount  of  recovery  would 
have  been  gi-eatly  abated  by  proof 
of  ■what  was  offered;  it  ■was,  how- 
ever, rejected  for  the  want  of  such 
notice."  He  concludes  that  the  re- 
covery of  the  plaintiff  is  based  on 
the  express  contract,  and  the  amount 
of  it  reduced  by  the  allowance  of 
damages  on  the  defendant's  cross 
claim  to  save  a  multiplicity  of  ac- 
tions, and  as  a  substitute  for  a  cross 
action  by  the  defendant. 

The  sense  in  which  recoupment 
operates  as  a  defense  for  failure  of 
consideration  is  exemplified  in  Wat- 
kins  V.  Hopkins,  13  Gratt.  743. 

Lee,  J. :  '  'It  is  somewhat  difficult  to 
determine  the  exact  gist  of  tlie  plea 
or  the  precise  scope  which  the 
pleader  intended  to  give  it.  It  is 
not  a  plea  in  bar  of  the  action  be- 
cause of  the  failure  of  the  defendant 
in  error  to  comply  with  a  precedent 
or  concurrent  condition,  on  the  per- 
formance of  which  or  the  offer  to 
perform  it,  only,  he  would  be  en- 
titled to  his  action.  Nor  is  it  the 
plea  of  a  vendee  of  land  who  waives 
his  right  to  the  specific  execution  of 
the  contract  at  the  hands  of  a  court 
of  equity,  and  goes  for  complete  re- 
imbursement in  the  form  of  dam- 
ages for  the  vendor's  breach  of  the 
contract.  For  whilst  it  alleges  the 
purchase  of  lands  at  a  price  of 
which  the  bond  for  five  hundred  dol- 
lars sued  on  was  but  the  third  and 
last  instalment,  it  claims  only  the 
sum  of  two  hundred  and  fifty  dol- 


lars as  compensation  for  the  breach 
of  the  contract.  It  must  be  regard- 
ed, therefore,  that  the  party  is 
claiming  both  the  right  to  have  the 
contract  executed  specifically  by  a 
conveyance  of  the  title,  and  also  by 
this  i^lea,  compensation  for  the 
breach  of  the  contract  in  the  failure 
to  make  it.  It  has  been  held  upon 
the  construction  of  this  statute,  that 
in  an  action  on  a  bon'I  for  the  pur- 
chase inoney  of  land,  a  plea  of  fail- 
ure of  consideration  upon  equitable 
grounds  requiring  a  rescission  of  the 
contract  and  a  reinvestment  of  the 
obligee  with  the  interest  sold  to  the 
obligor,  is  inadmissible,  Shiflett, 
etc.  V.  The  Orange  Humane  Society, 
7  Gratt.  297.  And  e  converso,  I  tliink 
it  equally  clear  that  in  such  an  ac- 
tion, a  plea  of  failure  of  considera- 
tion by  the  party's  refusal  or  neg- 
lect to  make  a  title  according  to  his 
contract,  and  sho'wnng  that  the  ven- 
dee was  entitled  to  a  specific  per- 
formance of  the  contract  without  a 
plain  election  to  ■waive  such  relief, 
and  to  go  for  entire  damages  for 
breach  of  the  contract,  would  not 
be  authorized  by  the  statute.  The 
party  must  make  his  election.  And 
if  he  will  claim  the  right  to  specific 
execvition,  he  cannot  also  come  with 
his  action  or  plea  under  this  statute 
for  damages,  generally  for  breach  of 
the  contract  to  make  the  title. 
Whether  in  a  case  in  wliicli  special 
damage  ha:s  been  sustained  by  rea- 
son of  the  vendor's  failure  to  make 
the  title  in  due  time  according  to 
his  contract,  the  vendee  may  claim 
compensation  in  tliis  form,  it  is  not 
necessary  to  decide  in  this  case,  as 
nothing  of  that  kind  is  alleged  in 


270 


'LEGAL   LIQUroATIONS   AND   EEDUCTIONS. 


from  his  obligation  to  perform  his  undertaking  because  the  con- 
sideration is  impaired.  On  the  contrary,  it  is  based  on  the  op- 
posite principle ;  namely,  the  contract  on  both  sides  be  enforced ; 
and  that  the  damages  which  the  plaintiil  has  sustained  from 


this  plea,  the  claim  being  for  com- 
pensation generally  for  the  vendor's 
breach  of  contract  in  failing  to  make 
the  title,  I  think  this  plea  was  not 
authorized  by  the  statute  and  was 
properly  rejected. 

"  The  first,  second  and  third  pleas 
allege  the  contract  for  the  sale  of 
the  two  tracts  of  land,  and  that  the 
bond  sued  on  was  given  for  the 
third  and  last  instalment  of  the  pur- 
chase money,  and  they  aver  a  par- 
tial failure  of  consideration  in  the 
following  particulars:  the  first,  that 
the  vendor  had  never  delivered  pos- 
session of  a  portion  of  one  of  the 
tenements  sold;  the  second,  that  he 
did  not  deliver  possession  of  either 
of  the  tenements  sold  for  two 
months  after  the  time  at  which  by 
the  contract  he  was  to  deliver  pos- 
session, and  the  third,  that  he  did 
not  deliver  them  in  the  plight  and 
condition  in  wliich  by  the  contract 
he  was  bound  to  deliver  them,  but 
delivered  theiu  in  a  damaged  con- 
dition from  injuries  done  or  permit- 
ted in  the  meantime  to  the  tene- 
ments and  freehold.  Now  posses- 
sion of  the  whole  subject  sold,  and  at 
the  time  and  in  the  condition  stipu- 
lated for  in  the  contract,  may  fairly 
and  legitimately  be  considered  part 
and  parcel  of  the  consideration 
moving  from  the  vendee;  and  if  the 
vendor  fail  to  make  good  his  under- 
taking in  these  respects,  there  can 
be  no  reason  why  the  vendee  should 
not  be  entitled  to  compensation  for 
the  loss  thereby  occasioned.  He 
does  not  get  all  which  he  stipulated 
for  and  for  which  he  promised  to 
pay  the  agreed  price.  The  diminu- 
tion in  the  value  of  the  subject  by 


reason  of  the  vendor's  shortcomings 
should  therefore  in  some  form  be 
made  good  to  the  vendee,  and  I  can 
perceive  no  good  reason  why  com- 
pensation should  not  be  made  in  this 
form  by  an  equitable  plea  of  offset 
under  our  statute.  Indeed  it  seems 
a  verj^  appropriate  mode  by  wliich 
the  diminution  in  the  value  of  the 
thing  purchased  may  be  compen- 
sated by  a  correspondent  diminu- 
tion of  the  price  to  be  paid.  There 
is  nothing  in  the  terms  of  the  statute 
to  restrict  the  plea  of  equitable  set- 
off to  contracts  in  relation  to  per- 
sonalty. The  terms  of  the  act  are 
general:  'In  any  action  on  a  con- 
tract,' and  it  includes  contracts  by 
deed  as  well  as  parol,  and  there  can 
be  no  reason  for  excluding  all  con- 
tracts relating  to  the  sale  and  pur- 
chase of  real  property  from  the 
operation.  In  a  case  indeed  as  we 
have  seen  where  the  equitable 
grounds  relied  on  would  require  a 
rescission  of  the  contract  and  a  re- 
investment of  the  vendor  with  the 
interest  alleged  to  have  been  sold,  a 
plea  of  failure  of  consideration  un- 
der this  statute  could  not  be  rehed 
on.  And  upon  the  terms  of  the 
statute  wliich  authorize  the  plea  in 
case  of  a  breach  of  warranty  of  the 
title  or  soundness  of  personal  prop- 
erty, it  may  be  argued  that  such  a 
plea  is  inferentially  excluded  in 
case  of  a  breach  of  warranty  of  the 
title  to  real  estate, 

"In  Pence  &  C.  v.  Huston's  Ex'r, 
6  Gratt.  204,  this  question  was  raised 
but  was  not  decided,  because  the 
court  thought  that  the  matter  of  the 
plea  showed  that  the  defendant 
would  have  been  entitled  to  relief 


EECOUPMEiSrr    AND   COUNTERCLAIM. 


271 


breach  of  the  engagements  in  his  favor  shall,  in  whole  or  in 
part,  be  compensation,  by  allowance,  in  favor  of  the  defendant, 
and  apphcation  thereto  of  such  damages  as  he  has  suffered  from 
the  infraction  of  the  correlative  duties  and  stipulations  of  the 


either  at  law  or  in  equity,  and  con- 
stituted a  substantial  defense  to  the 
action.  And  as  the  plaintiff,  instead 
of  objecting  to  the  filing  of  the  plea 
or  demurring,  had  taken  issue  upon 
it,  and  there  had  been  a  verdict  for 
the  defendant,  the  question  whether 
the  defense  was  authorized  by  the 
statute  did  not  arise,  the  defect,  if 
any,  being  cured  by  the  act  of  jeo- 
fails. But  in  this  case  the  claim  is 
for  compensation  for  a  jiartial  fail- 
ure of  consideration  only,  and  the 
matter  shown  in  the  pleas  make  no 
case  for  a  rescission  of  the  contract. 
In  fact  they  proceed  on  the  assump- 
tion that  the  contract  has  been  in 
part  executed  and  in  part  is  yet  to 
be  executed,  and  for  a  part  as  to 
which  it  has  not  been  and  cannot 
now  be  specifically  executed,  com- 
pensation is  to  be  made.  Tliat  the 
vendee  claims  to  have  specific  exe- 
cution by  a  conveyance  of  the  title 
constitutes  no  objection.  This  is  in 
perfect  consistence  with  the  claim 
for  compensation  for  the  failure  in 
those  particulars  as  to  which  specific 
performance  cannot  be  had.  The 
vendor  is  bound  to  make  good  his 
contract  in  all  its  parts,  and  if  in  any 
he  cannot  now  perform  it  specific- 
ally, he  must  make  compensation.  It 
^viU  not  do  for  him  to  say  that  if  he 
makes  the  title  and  the  vendee  ac- 
cepts his  conveyance,  the  latter 
thereby  waives  his  claim  to  compen- 
sation for  the  failure  to  deliver  pos- 
session at  the  time  and  in  the 
condition  stipulated  for.  In  prac- 
tice, it  has  not  been  unusual  where 
a  vendee  comes  with  a  bill  for  spe- 
cific   execution,    for    the  court    of 


chancery  to  decree  the  title  and  also 
to  go  on  and  give  an  account  of  rents 
and  profits,  and  for  waste  done  to 
the  inheritance  during  the  time  for 
which  the  possession  was  improperly 
withheld,  as  well  as  compensation 
for  deficiency  in  quantity  upon  the 
principles  of  that  court,  upon  the 
ground  that  having  possession  of 
the  subject  it  will  give  complete  re- 
lief and  save  the  necessity  of  further 
litigation.  And  if  the  correctness 
of  this  practice  may  be  successfully 
questioned  (as  to  which  I  express  no 
opinion),  certainly  the  vendee  may 
maintain  his  action  at  law  against 
the  vendor  for  damages  for  his 
breaxjh  of  the  contract,  and  in  either 
view,  where  he  is  sued  upon  the  con- 
tract on  his  part,  he  may  assert  his 
claim  against  the  vendor  by  plea  in 
the  nature  of  a  set-off  under  the 
statute. 

"The  object  of  the  statute  is  to 
save  litigation  by  enabUng  the  par- 
ties to  settle  all  the  matters  in  con- 
troversy in  one  suit ;  and  to  effectuate 
this  purpose  it  should,  where  neces- 
sary, receive  a  liberal   construction. 

' '  No  objection  can  be  raised  in  this 
case  upon  the  idea  that  the  statute 
does  not  authorize  the  plea  in  the 
case  of  a  breach  of  warranty  of  the 
title  to  real  property,  as  the  claim  is 
founded  on  an  executory  contract 
of  sale,  stipidating  for  the  posses- 
sion of  the  premises  at  a  certain  time 
and  in  a  certain  condition,  as  well 
as  for  the  conveyance  of  the  legal 
title,  and  the  alleged  breach  relates 
to  the  possession  only  and  not  in  any 
manner  to  the  title." 


272  LEGAL   LIQUIDATIONS   AND   REDUCTIONS. 

plaintiff,  which  were  the  consideration.  The  law  will  cut  of  so 
much  of  the  plaintiff's  claim  as  the  cross  damages  may  come  to.^ 
Wherever  recoupment,  strictly  such,  is  allowed,  distinct  causes 
of  action  are  set  off  against  each  other.^ 

It  is  not  a  bar  to  the  plaintiff's  action  like  the  technical  plea 
in  avoidance  of  circuity  of  action,  but  in  pursuance  of  the  same 
policy  of  the  law,  it  seeks  to  satisfy  and  discharge  the  whole  or  a 
part  of  the  plaintiff's  claim  with  damages,  for  which  the  plaintiff 
is  liable  in  respect  of  the  same  transaction.* 

For  the  purpose  of  discussing  the  principal  constituent  features 
of  recoupment,  the  foUowing  propositions  are  sufficiently  com- 
prehensive: ' 

1.  The  claim  or  demand  for  which  the  defendant  seeks  to  re- 
coup, must  be  a  vahd  cause  of  action,  upon  which  a  separate 
suit  might  be  maintained  against  the  party  beneficially  inter- 
ested in  the  plaintiff's  action,  or  his  assignor.  2.  It  must  arise 
from  the  same  subject  matter,  or  spring  out  of  the  same  con- 
tract or  transaction  on  which  the  plaintiff  relies  to  maintain  his 
action.  3.  It  is  immaterial  whether  it  be  in  itself,  or  is  set 
up  as  a  defense  against  a  claim  for  liquidated  or  unhquidated 
damages.  I^or  is  it  necessary  that  the  claims  on  both  sides  be 
of  the  same  nature.  4.  It  is  available  only  as  a  defense ;  for, 
except  by  statute,  it  can  have  no  further  effect  than  to  answer 
the  plaintiff's  damages  in  whole  or  in  part ;  the  defendant  can- 
not recover  any  balance  or  excess.  5.  A  defendant  has  an  elec- 
tion to  use  such  a  cross  demand  as  a  defense,  or  bring  a  separate 
action  upon  it ;  but  he  will  not  have  the  election  to  set  up  his 
claim  by  way  of  recoupment,  unless  it  would  be  just  and  prac- 
ticable to  adjust  it  in  the  plaintiff's  action.  6.  When  made  the 
subject  of  recoupment,  the  defendant  assumes  the  burden  of 
proof  in  respect  to  it,  and  the  same  rule  or  measure  of  damages 
apphes,  subject  to  the  limitation  just  stated,  as  would  be  appli- 
cable if  the  defendant  had  brought  a  separate  action.  7.  When 
submitted  as  a  subject  of  recoupment,  the  judgment  wiU  be  a 
bar  to  any  other  suit  or  recoupment  upon  it. 

lives  V.  Van  Epps,  22  Wend.  155,  2 Gillespie  v.  Torrance,  25  N.  Y. 

156;   McAllister  v.   Reab,   4  Wend.  306,  309;  Price's  Ex'rs  v.  Reynolds, 

483;  S.  C.   8  Wend.  109;  Batterman  39  N.  J.  L.  172. 

V.  Pierce,  3  Hill,  171.  3McCuUough  v.  Cox,  6  Barb.  387. 


EECOUrMENT   AND    COUNTEKCLAIM.  273 

The  counterclaim  of  the  code  adopted  in  many  of  the  states, 
includes  recoupment  and  is  more  comprehensive ;  and  the  remedy 
by  counterclaim  and  recoupment  has  been  made  more  useful  and 
complete  by  statutory  provision  against  voluntary  discontinu- 
ance of  the  action  by  the  plaintiff,  without  the  defendant's  con- 
sent, after  this  defense  has  been  interposed ;  and  for  judgment 
on  the  adverse  claim,  if  any  amount  is  established  after  satisfy- 
ing the  plaintiff's  claim,  or  where  no  claim  in  favor  of  the 
plaintiff  is  adjudged. 

1.  The  claim  or  demand  to  le  recoiiped  must  he  a  valid  cause  of 
dotion  for  which  a  separate  sicit  could  Tje  maintahied. 

Reduction  of  damages  may  often  be  claimed  upon  facts  which 
do  not  constitute  a  cause  of  action  in  favor  of  the  defendant. 
Of  this  class  and  nature  are  those  provable  in  initigation  of 
damages.  The  distinction  is  important ;  for  it  is  necessary  to 
use  the  latter  in  defense ;  the  benefit  of  them  will  be  lost  if  they 
are  not  then  introduced.  But  if  the  defense  consists  of  a  sub- 
stantive cause  of  action,  it  will  not  be  lost  or  barred  by  the  de- 
fendant faihng  to  put  it  forward  when  there  is  an  opportunity 
to  make  it  available  as  a  defense.  The  fact  that  the  defendant 
has  the  option  to  avail  himself  of  matter  of  recoupment  or 
bring  a  cross  suit  upon  it,  necessarily  imphes  that  such  matter 
constitutes  a  cause  of  action.^  In  an  action  to  recover  for  labor, 
if  the  benefit  of  the  labor  is  lost  by  causes  for  which  the  plaint- 
iff would  be  answerable  in  a  cross  action,  the  same  matter  which 
would  support  a  cross  action,  may  be  given  in  evidence  in  de- 
fense of  the  suit  to  recover  payment.^  Bigelow,  C.  J.,  said: 
"  That  doctrine  (of  recoupment)  does  not  rest  on  the  nature  of 
the  right  which  the  plaintiff  has  in  the  contract  which  he  seeks 
to  enforce,  nor  on  the  fact  that  his  interest  in  it  is  the  same  at 
the  time  of  suit  brought,  as  when  it  was  originally  entered  into. 
The  essential  elements  on  which  its  apphcation  depends  are  two 
only.  The  first  is,  that  the  damages  which  the  defendant  seeks 
to  set  off  shah,  have  arisen  from  the  same  subject  matter,  or 
sprung  out  of  the  same  contract  or  transaction  as  that  on  which 
the  plaintiff  rehes  to  maintain  his  action.     The  other  is,  that 

1  Gillespie  v.  Torrance,  25  N.  Y.  200;  Clark  v.  "Walbridge,  5  Ind. 
309.     See  Houston  v.  Yoiing,  7  Ind,      176. 

^Austin  V.  Foster,  9  Pick.  341. 
Vol.  I  — 18 


274  LEGAL   LIQUIDATIONS    AND   EEDUCTIONS. 

the  claim  for  damages  shall  be  against  the  plaintiff,  so  that  their 
allowance  by  wdy  of  set  off,  or  defense  to  the  contract  declared 
^on,  shall  operate  to  avoid  circuity  of  action,  and  as  a  substitute 
for  a  distinct  action  against  the  plaintiff  to  recover  the  same 
damages  as  those  relied  on  to  defeat  the  action."  ^ 

The  cause  of  action  set  up  for  recoupment  must  be  one 
against  the  party  beneficially  interested  in  the  plaintiff's  action;' 
and  a  claim  against  the  nominal  plaintiff  personally  when  he 
sues  in  a  fiduciary  capacity,  or  for  the  benefit  of  another,  is  not 
available.  Thus,  where  property  attached  by  an  officer  upon 
mesne  process  was  replevied  from  him,  and  on  the  failure  of 
the  plaintiff  in  that  suit  to  comply  with  the  judgment  for  re- 
turn of  the  property,  suit  was  brought  on  the  bond  by  the  offi- 
cer, it  was  held  that  the  other  party  could  not  recoup  the 
damages  adjudged  in  his  favor  against  such  officer  for  false  re- 
turn on  the  process  upon  which  he  originally  attached  the  prop- 
erty ;  because  the  damages  recovered  by  the  officer  on  the  bond 
would  be  held  in  trust  for  the  benefit  of  the  attaching  creditor 
and  his  debtor,  and  the  damages  sought  to  be  recouped  were 
assessed  against  him  personally  for  a  wrong  committed  by  him.^ 
So  in  an  action  b}^  executors,  as  such,  for  the  recovery  of  purchase 
money  of  land  sold  by  them,  the  purchaser  making  no  offer  or 
attempt  to  rescind  the  contract,  cannot  avail  himself  of  false 
and  fraudulent  representations  made  by  the  executors  at  the 
time  of  the  sale  in  respect  to  the  subject  matter,  either  as  a  de- 
fense, or  by  way  of  recoupment  or  counterclaim.  His  remedy, 
if  he  has  any,  is  against  the  executors  personally.^ 

It  is  not  essential  to  the  exercise  of  the  right  of  recoupment 
that  the  suit  in  which  the  right  is  asserted  should  be  brought  in 
the  name  of  the  party  who  is  liable  for  the  cross  claim,  nor  that 
the  suit  be  against  the  party  who  is  entitled  to  the  benefit  of 
such  cross  claim.  It  is  enough  that  the  suit  is  substantially 
between  them;  that  the  claim  sued  on  is  subject  to  this  de- 
fense, or  that  the  proceeding  be  of  such  a  nature  that  the 
mutual  clauns  can  be  adjusted  in  it ;  and  that  whatever  is  re- 
covered is  enforcible  against  the  property  of  the  party  seeking 

1  Sawyer  v.  Wiswell,  9  Allen,  39.  3  Westfall  v.  Dagan,  14  Ohio  St. 

2  Wright  V.  Quirk,  105  Mass.  44;  see     276. 
Beckman  v.  Maulove,  18  Cal.  388, 


KECOUPMENT   AND   COUNTEKCLAIM.  275 

to  recoup ;  and  whatever  is  deducted  upon  the  cross  claim  prop- 
erly enures  to  his  benefit.  By  the  water  craft  law  of  certain 
states,  demands  of  certain  descriptions  are  liens  upon  and  en- 
forcible  against  the  water  craft,  which  may  be  discharged  by 
bond  or  some  form  of  undertaking  in  behalf  of  the  owners, 
conditioned  for  the  payment  of  amounts  found  to  be  liens.  In 
actions  upon  such  security,  or  against  the  Abater  craft  not 
bonded,  any  matter  of  recoupment  in  respect  to  the  demand 
alleged  to  be  a  lien  may  be  set  up.^  The  surety  of  a  principal 
entitled  to  recoupment  may,  as  a  general  rule,  avail  himself  of 
that  defense ;  because  of  the  natural  equity  that  mutual  debts 
and  habilities  growing  out  of  the  same  transaction  shall  com- 
pensate each  other.2  In  ISTew  York,  however,  this  apphcation 
of  recoupment  is  refused.^ 

A  cross  claim  of  the  defendant  and  others  against  the  plaint- 
iff cannot  be  set  up  by  way  of  recoupment  or  counterclaim.* 

Where  the  plaintiff  sues  as  assignee  and  is  not  entitled  to  pro- 
tection as  a  bona  fide  holder  of  negotiable  paper,  his  action  is 
subject  to  any  defense  by  way  of  recoupment  which  would  be 
good  against  the  party  to  whom  the  plaintiff's  demand  accrued.^ 
Where  a  note  for  the  price  of  property  sold  was  made  payable 
to  the  vendor's  wife,  and  no  portion  of  the  consideration  moved 
from  her,  it  was  held  that  the  note  was  subject  to  the  same  de- 
fense by  way  of  recoupment  for  the  vendor's  fraud  in  the  sale, 
as  if  the  note  had  been  made  payable  to  the  vendor  himself.^ 

Must  the  matter  of  recoupment  be  a  mature  cause  of  action 
at  the  time  of  the  commencement  of  the  plaintiff's  action,  or 
will  it  be  sufficient  that  it  is  such  at  the  time  of  pleading? 
CampbeU,  J.,''  said  "  the  purpose  of  recoupment  would  be  de- 
feated if  the  party  cannot  be  allowed  to  plead  what  he  might, 

1  Steamboat  Wellsville  v,  Geisse,  ^  King  v.  Wise,  43  Cal.  639;  Stearns 
3  Ohio  St.  333;  Ward  v.  WUson,  3  v.  Martin,  4  Cal.  229;  Collins  v.  But- 
Mich.  1.  ler,  14  Cal.  223;  Howard  v.  Sharer, 

2  McHardy  v.  Wadsworth,  8  Mich.  20  Cal.  277. 

850;  Watemianv.  Clark,  76  111.  428;  sMcKnight  v.    Devlin,  52  N.  Y. 

Bee  Hobbs  v.  Duff,  23  Cal.  596.  399;  Van  de  Sande  v.  Hall,  13  How. 

3  Lasher  v.  Williamson,  55  N.  Y.  Pr.  458;  Hinsdell  v.  Weed,  5  Denio, 
619;  Gillespie  v.  Torrence,  25  N.  Y.  172;  Rockwell  v.  Daniels,  4  Wis.  433. 
306;  La  Farge  v.  Halsey,  4  Abb.  397.  6  Kelly  v.  Pember,  35  Vt.  183. 

"  In  Piatt  V.  Brand,  26  Mich.  175. 


276  LEGAL   LTQTJTDATIOISrS    AND   EEDTJCTIONS. 

at  the  time  of  pleading,  have  declared  upon.  The  object  of 
this  practice  is  to  diminish  litigation  by  consolidating  contro- 
versies into  one  action.  The  whole  doctrine  is  one  of  the  equi- 
table outgrowths  of  the  improvement  of  legal  practice ;  and  no 
obstacle  should  be  thrown  in  the  way  of  its  encouragement. 
Our  legislation  has  indicated  this  design  by  enlarging  the  de- 
fense, and  permitting  defendants  to  recover  damages  bej^ond 
the  plaintiff's  claim.  We  do  not  feel  disposed  to  accept  any 
technical  doctrines  which  would  prevent  its  full  efficacy,  unless 
compelled  by  a  weight  of  authority  which  we  do  not  find  here." 
But  it  was  said  by  Jarvis,  C.  J.,^  "  It  seems  to  me  we  should 
carry  the  doctrine  respecting  the  avoiding  of  circuity  of  action 
very  much  further  than  any  case  has  yet  carried  it,  if  we  were  to 
hold  that  the  damages  may  be  reduced  by  showing  a  breach  of 
the  contract  on  the  plaintiff's  part  subsequently  to  the  com- 
mencement of  the  plaintiff's  action.  There  are  many  cases 
where  circumstances  existing  before  action  brought  have  been 
allowed  to  be  given  in  evidence  to  mitigate  or  reduce  the  dam- 
ages ;  but  none  that  I  am  aware  of  where  matters  arising  after 
action  brought  have  been  so  received." 

In  New  York  it  has  been  held  in  covenant  for  rent  that  the 
tenant  cannot  recoup  his  damages  for  a  breach  of  covenant  on 
the  part  of  the  plaintiff  after  the  commencement  of  the  suit.^ 
But  in  a  later  case,  the  cornet  of  appeals  affirmed  a  judgment  on 
a  counterclaim  for  conversion  of  property  after  the  commence- 
ment of  the  action.^  And  the  court  say :  "  Strictly  speaking, 
the  act  of  the  plaintiff  in  procuring  and  serving  the  injunction 
would,  ordinarily,  be  an  act  at  or  after  the  commencement  of  the 
action,  and  therefore  one  the  damages  for  which  could  not  be 
set  up  as  a  counterclaim  in  a  pleading  which  is  presumed  to 
state  the  claims  of  the  parties  as  existing  at  the  time  of  bring- 
ing the  suit ;  but  as  the  act  of  the  plaintiff  related  to  the  very 
property  which  was  the  subject  of  the  action,  and  materially 
affected  the  defendant's  rights  and  defense  therein,  I  do  not  see 
why  it  could  not  have  been  set  up  in  a  subsequent  or  supple- 
mental answer,  and  have  thus  been  rendered  effectual  to  the 
defendant." 

1  In  Bartlett  v.  Holmes,  13  C.  B.  2  Harger  v,  Edmunds,  4  Barb.  256. 
630.  3  Ashley  v.  Marshall,  29  N.  Y.  494. 


EEC0UPME2JT   AXD   COUNTEKCLAIM. 


277 


2,  It  must  arhe  from  the  same  suhject  7nattei\  or  spring  out  of 
the  same  contract  or  transaction  on  v^hich  the  plaintiff  relies  to 
maintain  his  action}  The  same  thing  is  substantially  required 
to  constitute  one  branch  of  the  counterclaim  of  the  modern 
code,  in  which  it  is  required,  that  it  arise  out  of  the  same 
transaction  set  forth  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,  or  be  connected  with  the  subject  of  the  action.^ 

If  a  party  in  negotiating  a  contract  commits  an  actionable 
fi^aud  upon  the  other  contracting  party  touching  the  subject  of 
their  negotiation,  the  latter,  though  he  has  not  exercised  his 
privilege  to  repudiate  the  contract  on  the  discovery  of  the  fraud, 
may  recoup  his  damages  therefor  in  any  action  brought  by  the 
guilty  party  upon  the  contract.  Such  a  cross  claim  does  not 
grow  out  of  the  contract,  but  it  is  part  of  the  same  transaction, 
and  is  connected  with  the  subject  of  the  action.* 

A  executed  a  memorandum  under  seal  in  February,  stating 


1  Sawyer  v.  Wiswell,  9  Allen,  39. 

2  The  Xenia  Branch  Bank  v.  Lee, 
7  Abb.  373;  Epperly  v.  Bailey,  3  Ind. 
72;  Strayback  v.  Jones,  9  Ind.  473; 
Barhyte  v.  Hughes,  33  Barl?.  320. 

3Bh-dsey  v.  Butterfield,  34  Wis. 
52;  Van  Epps  v.  Harrison,  5  Hill,  63; 
Myers  v.  Estell,  47  Miss.  4.  17,  21; 
KeUy  T.  Pember,  35  Vt.  183;  Ken- 
nedy T.  Crandall,  1  Lans.  1 ;  Rontan 
V.  Nichols,  22  Ark.  224;  Perley  v. 
Balch,  23  Pick.  283;  Timmons  v. 
Diiun,  4  Ohio,  680;  Avery  v.  Brown, 
31  Conn.  398;  Caldwell  v.  Sawyer, 
30  Ala.  283;  Gage  v.  Phelps,  38  Ala. 
383;  Moberly  v.  Alexander,  19  Iowa, 
162;  Jolinson  V.  Milner,  14  Wend.  185; 
President,  etc.  v. Wadleigh,  7  Blackf. 
102:  Light  v.  Stover,  12  S.  &  R.  431; 
Haynes  v.  Harper,  25  Ark.  541 ;  War- 
dell  v.  Fosdick,  13  John.  325:  Brown 
V.  Tuttle,  G6  Barb.  169;  Hogg  v. 
Cardwell,  4  Sneed,  151;  Wilson  v. 
Johnson,  25  Mo.  430;  Withers  v. 
Greene,  9  How.  U.  S.  213;  Estep  v. 
Fenton,  66  lU.  467;  Sa^vyer  v.  Wis- 
well, 9  Allen,  39;  Bradley  v.  Rea,  14 
Allen,  20;  Mixer  v.  Coburn,  11  Met. 


561;  Westcott  v.  Nims,  4  Cush.  215; 
Cook  V.  Cashner,  9  Cush.  266;  Har- 
rington V.  Stratton.   23    Pick.   510; 
HaU  V.  Clark,  21  Mo.  415;  Rawley 
V.  Woodruff,  2  Lans.  419;  Mare  v. 
Rand,  60  N.  Y.  398;  Price  v.  Lewis, 
8  Harris,  51;  Graham  v.  Wilson,  6 
Kan.  489;  AUen  v.    Shackleton,  15 
Ohio  St.  145;  Suniptou  v.  Welch,  2 
Bay,  558;  Wheat  v.  Dotson,  12  Ark. 
699;  Tunno  v.  Fludd,  1  McCord,  121 
Abercrombie  v.  Owings,  2  Rich.  127 
Adams  v.  Wylie,  1  Nott.  &  McC.  78 
McFarland  v.  Carver,   34  Mo.   195 
Christie  v.    Ogle,    33  HI.   295;  Rey 
nolds  V.  Cox,  11  Ind.  262;  7  id.  257 
House  V.  Marshall,  18  Mo.  369;  Shute 
V.  Taylor,  5  Met.  61;  Owens  v.  Rec- 
tor, 44  Mo.  389;  James  v.  Lawrence- 
burg  Ins.  Co.  6  Blackf.  525;  Burton 
T.  Stewart,  3  Wend.  236;  Hammatt 
V.   Emerson,  27  Me.   308;  White  v. 
Sutherland,    64    Dl.    181;  Gibson  v. 
Marquis,  29  Ala.  668;  Isham  v.  Da- 
vidson. 52   N.    Y.   237;  Simmons  v. 
Catreer,  12  Sm.  &  51.  584;  Estell  v. 
Myers,  54  Miss.  174;  56  id.  800. 


278  LEGAL   LIQUIDATIONS    AND   KEDUCTIONS. 

that  he  had  hired  of  "W  a  certain  lot  in  the  city  of  l^ew  York, 
for  one  year  from  the  first  of  May  following,  at  a  rent  of  $1,000. 
He  was  induced  to  make  the  contract  by  the  fraudulent  repre- 
sentations of  W,  that  the  lot  embraced  a  certain  other  parcel  of 
land,  which,  as  it  afterwards  turned  out,  belonged  to  the  cor- 
poration. A  discovered  the  fraud  before  the  first  of  May,  and  on 
that  day,  having  obtained  a  lease  of  the  parcel  owned  by  the  cor- 
poration, took  possession  of  the  whole,  and  occupied  dm^ing  the 
year.  It  was  held  in  an  action  by  W  for  the  rent,  that  A  was 
entitled  to  a  deduction,  by  reason  of  the  fTaud,  of  at  least  what 
he  was  obliged  in  good  faith  to  pay  for  the  corporation  lease.^ 
And  in  action  for  fraudulent  representations  made  on  the  ex- 
change of  property,  the  defendant  was  allowed  to  recoup  his 
damages  resulting  from  the  fraudulent  representations  of  the 
plaintiff  in  the  same  trade.^  "Where  an  action  was  brought  to 
recover  a  balance  due  on  a  contract  of  sale  of  two  separate  pat- 
ented processes,  described  and  contracted  in  a  single  written 
agreement,  for  an  entire  sum  payable  in  instalments,  it  was  held 
that  the  vendee  was  entitled  to  set  off  damages  arising  out  of 
the  vendor's  fraudulent  representations  as  to  one  of  the  pro- 
cesses, although  the  other  proved  to  be  more  valuable  than  the 
amount  paid  for  both.' 

So  in  actions  for  the  price  of  property  sold,  damages  for  breach 
of  any  warranty  touching  the  property  made  by  the  vendor, 
whether  it  be  express  or  implied,  may  be  recouped.* 

'Allaire  v.  Whitney,  1  Hill,  484;  How.  IT.  S.  214;  VanBuren  v.  Diggs, 

Whitney  v.  Allaire,  1  N.  Y.  305.  n  How.  U.  S.  461;  Wood  v.  Fowler, 

2  Carey  V.  Guillow,  105  Mass.  18.  1  Ala.  292;  Fish  v.   Tank,  12  Wis. 

3  Rowley  v.  Woodruff,  2  Lans.  419.  27G:  Dean  v.  Harrold,  37  Pa.  St.  150; 
*Spaulding     v.      Vandercook,     2  Ketchum  v.  Wells,  19  Wis.  25;  Slu- 

Wend.   431;    Hoover  v.    Peters,    18  gleman  v.  Jeffries,  1  S.   &  R.  477; 

Mich.    51;    McAllister    v.    Reab,    4  Murphy  v.  Gay,  37  Mo.  535;  Barth  v. 

Wend.    483;  Reab  v.    McAllister,   8  Burt,  43  Barb.   628;   Brown  v.  Tut- 

Wend.  109;  Herbert  v.  Ford,  29  Me.  tie,  60  Barb.  169;  Westcott  v.  Mems, 

546;  Kellogg  v.  Winslow,  14  Conn.  4  Cush.    215:   Miller  v,    Gaither,  3 

411;   Hitchcock  v.  Hunt,   28  Conn.  Bush,  152;  Culver  v.  Blake,  5  B.  Mon. 

343;   Mercer  v.    Hall,    2    Tex.    284;  528;   McMillan  v.  Pegg,  3  Stew.  165; 

Mears  v.  Nichols,  41  111.  207;  Miller  Lemon  v.  Trail,   13  How.  Pr.  248; 

V.  Smith,  1  Mason,  487;  Love  v.  Old-  pi^nt  v.  Condit,  22  Ark.  454;  Jami- 

ham,  22  Ind.  51;  Getty  v.  Rountree,  son  v.  Woodruff,  34  Ala.  143;  Hoe  v. 

2  Chand.  (Wis.)  28;  McAlpin  v.  Lee,  Sanborn,  3  Abb.  N.  S.  189;  Harmon 

12  Conn.   129;  Withers  v.  Green,  9  y.  Sanderson,  6  Sm.  &  M.  41;  Wood 


EECOTJPMENT   AND   COUNTERCLAtM. 


279 


In  suits  for  labor  or  goods,  the  warranty  of  such  labor  or 
goods  is  not  a  matter  altogether  collateral ;  but  the  warranty 
forms  an  essential  portion  of  the  consideration  for  the  defend- 
ant's undertaking,  and  therefore  the  breach  of  it  is  proper  to 
be  shown  in  reduction  of  the  stipulated  price.^ 

Whatever  the  nature  of  the  contract,  however  numerous  or 
varied  the  stipulations,  and  whether  they  are  all  written  and 
embodied  in  one  or  several  instruments,  or  only  partly  written, 
or  partly  express  and  partly  implied,  if  they  are  connected,  so 
that  what  is  undertaken  to  be  done  on  one  side  altogether,  is 
the  consideration,  or  part  of  the  consideration,  either  in  prom- 
ise or  performance,  for  what  is  engaged  to  be  done  on  the  other, 
the  range  of  the  right  of  recoupment  is  coextensive  with  the 
duties  and  obligations  of  the  parties,  respectively,  both  to  do 
and  to  forbear, —  as  weU  those  imposed  at  first  by  the  language 
of  the  contract,  as  those  which  subsequentl}^  arise  out  of  it  in 
the  course  of  its  performance.^   It  extends  to  damages  resulting 


V.  Fowler,  1  Ala.  382;  Ramsey  v. 
Sargent,  21  N.  H.  397;  Tean  v.  Har- 
rold,  37  Pa.  St.  150;  Williams  v. 
Miller,  21  Ark.  469;  Love  v.  Oldham, 
•22  Ind.  51;  Goodwin  v.  Morse,  9  Met. 
278;  Harrington  v.  Stratton,  22  Pick. 
510;  Flint  v.  Lyon,  4  Cal.  17;  Dennis 
V.  Belt,  30  Cal.  247;  Hodgklns  v. 
Moultou,  100  Mass.  309;  Barnett  v. 
Smith,  4  Gray,  50;  Allen  v.  Furbish, 
4  Gray,  504;  Stacy  v.  Kemp,  97 
Mass.  168;  Darnell  v.  Williams,  2 
Stark.  1G6;  Parish  v.  Stone,  14  Pick. 
198;  Judd  v.  Dennison,  10  Wend.  513; 
Murray  v.  Curtin,  67  111.  286;  Owens 
V.  Sturgis,  67  111.  366;  Nixon  v.  Car- 
son, 38  Iowa,  33S;  Walker  V.  Hoising- 
ton,  43  Vt.  G08;  Parker  v.  Pringle,  2 
•Strobh.  242;  Babcock  v.  Price,  18  lU. 
420. 

1  AUeu  V.  Hooker,  25  Vt.  137. 

2Brigham  v.  Hawley,  17  111.  38; 
Lee  V.  Clements,  48  Ga.  128;  Satch- 
well  V.  Williams,  40  Conn.  371; 
Fowler  v.  Pa^ne,  49  Miss.  32; 
Blanchard  v.  Misor,  12  Fla.  543; 
3Iill  T.  Mooney,  30  Ga.  413;  Rogers  v. 


Humphrey,  39  Me.  382;  Winder  v. 
Caldwell,  14  How.  U.  S.  434;  Cherry 
V.  Sutton,  30  Ga.  875;  Bowker  v. 
Hoyt,  18  Pick.  555;  Fabbrecotti  v. 
Launitz,  3  Sandf.  743;  Van  Buren  v. 
Diggs,  11  How.  U.  S.  461;  Dennis  v. 
Bett,  30  Cal.  247;  Logan  v.  Tibbitts, 
4  Greene  (la.),  389;  Heaston  v.  Col- 
grove,  3  Ind.  265;  Keyes  v.  Western, 
etc.  Co.  34  Vt.  81;  Weldey  v.  Frac- 
tional School  Dist.  25  Mich.  419;  Elliot 
V.  Heath,  14  N.  H.  131;  Bloodgood  v. 
Inglesby,  1  Hilt.  388;  Walker  v.  MU- 
lard,  29  N.  Y.  375;  Gathman  v. 
Castleberry,  49  Ga.  272;  IMack  v. 
Patchin,  42  N.  Y.  167;  Eldred  v. 
Leahy,  31  Wis.  546;  WHiitney  v. 
Meyers,  1  Duer,  267;  Pedan  v.  Moore, 
1  Stew.  &  Port.  71;  Wilder  v.  Boyn- 
ton,  63  Barb.  o4;  Cook  v.  Soule,  56 
N.  Y.  420;  45  How.  Pr.  340;  Holtz- 
worth  v.  Rock,  26  Ohio  St.  33;  Myers 
V.  Burns,  33  Barb.  401;  35  N.  Y.  269; 
Ives  V.  Van  Epps,  22  Wend.  155; 
Warfeld  v.  Booth,  33  Md.  63;  Wads- 
worth  V.  Smith,  23  Mo.  562;  Mayor, 
etc.  V.  Mabie,  13  N.  Y.  151;  Rogers  v. 


280 


LEGAL   LIQUIDATIONS   AND   REDUCTIONS. 


from  negligence  where  care,  activity  and  diligence  are  required ;  * 
where  damages  accrue  from  excess  of  action,  as  where  it  inju- 
riously transcends  the  limits  of  duty  or  authority ;  ^  from  igno- 
rance where  knowledge  and  sldll  are  due ; '  and  honesty  and  good 
faith  being  always  obligations  upon  contracting  parties,  all 
damages  which  result  from  any  covenous  practice  or  tort,  within 
the  scope  of  the  transaction  Avhich  the  plaintiff's  action  in- 
volves, may  be  the  subject  of  recoupment.  An  employer  may 
recoup  against  the  servant's  wages,  not  only  the  damages  arising 
from  his  neghgence  and  want  of  skill  and  knowledge,  but  for 
any  fraudulent  or  tortious  waste,  conversion  or  destruction  of 
his  master's  property  entrusted  to  him  or  placed  in  his  care,  in 
the  course  of  his  employment ;  *  against  a  pledgee  suing  for  the 


Ostram,  35  Barb.  523;  Westlake  v.  De 
Graw,  25  Wend.  669;  Goodwin  v. 
Morse,  9  Met.  278:  Sanger  v.  Fencher, 
27  111.  340;  Bee  Printing  Co.  v.  Heck- 
borne,  4  Allen,  63;  Turner  V.  Gibbs,  50 
Mo.  556;  Dermott  v.  Jones,  2  Wall.  1 
Overton  v.  Phelan,  2  Head,  445 
Bloom  V.  Lehman,  27  Ark.  489 
BeiTy  V.  Diamond,  19  Ark.  262 
Desha's  Ex'rv.  Robinson's  Adm'r,  17 
Ark.  228;  Springdale  Asso.  t.  Smith, 
32  111.  252;  Porter  v.  Woods,  3 
Hump.  56;  Crouch  v.  Miller,  5  Hump. 
585;  Fisk  v.  Tank,  12  Wis.  276;  Luf- 
burrow  v.  Henderson,  30  Ga.  482; 
Molby  V.  Johnson,  17  Mich.  382; 
Slow  V.  Yarrwood,  14  111.  424;  MiU 
V.  Mo  wry,  30  Ga.  413;  Stewart  v. 
Bock,  3  Abb.  118;  Hoopes  v.  Meyer,  1 
Nev.  433;  Murray  v.  Pennington,  3 
Gratt.  91;  Burroughs  v.  Clancey,  53 
111.  30;  Lunn  v.  Gage,  37  lU.  19; 
Evans  v.  Hughey,  76  111.  115;  Hub- 
bard V.  Rogers,  64  111.  434;  Eckles  v. 
Carter,  26  Ala.  563;  Evart  v.  Kerr,  1 
McMidl.  440;  Moore  v.  Caruthers,  17 
B.  Mon.  669;  Whitbeck  v.  Skinner,  7 
Hill,  53;  Chatterton  v.  Fox,  5  Duer, 
64;  Hill  v.  South  wick,  9  R.  I.  299; 
Fitchburg,  etc.  R.  R.  Co.  v.  Hanua,  6 
Gray,  539;  Allen  v.  McKibben,  5 
Mich.  449;  Key  v.  Henson,  17  Ark. 


254;  Hull  v.  Brackman,  55  111.  441; 
McDonald  v.  Milroy,  69  111.  498; 
Latham  v.  Sumner,  89  111.  283;  Cook 
V.  Prebble,  80  111.  381;  Bishop  v. 
Price,  24  Wis.  80. 

'Lee  V.  Clements,  48  Ga.  128; 
Fowler  v.  Payne,  49  Miss.  32;  Phelps 
V.  Paris,  39  Vt.  511;  Still  v.  Hall, 
20  Wend.  51 ;  Briggs  v.  Montgomery, 
3  Tenn.  673;  Denew  v,  Daverall,  3 
Camp.  451;  Grant  v.  Bolton,  14  John. 
377;  Shipman  v.  The  State,  43  Wis. 
381;  Garfield  v.  Huls,  54  lU.  427; 
Forman  v.  Miller,  5  McLean,  218; 
Doan  V.  Warren,  11  Upp.  Can.  C. 
P.  423;  McCracken  v,  Harris,  2  Spear, 
256;  Marshall  v.  Hann,  17  N.  J.  L. 
425;  Eaton  v.  Woolley,  28  Wis.  628. 

2  McLean  v.  Kerfoot,  37  111.  530. 

sDewitt  V.  Cullings,  32  Wis.  298; 
Stoddard  v.  Tread  well,  26  Cal.  294; 
Gaslin  v.  Woodson,  24  Vt.  140;  Hunt 
V.  Pierpont,  27  Conn.  301;  Shipman 
V.  The  State,  43  Wis.  381;  Robinson 
V.  Mann,  16  Ark.  97;  Hopping  v. 
Quin,  12  Wend.  517;  Gleason  v. 
Clark,  9  Cow.  57;  Hill  v.  Feather- 
stonehaugh,  7  Bing.  569;  Cardell  v. 
Bridge,  9  Allen,  855;  Eaton  v.  Wool- 
ley,  28  Wis.  628. 

4  Heck  V.  Shiner,  4  S.  &  R.  249; 
Allaire  Works  v.  Guion,  10  Barb.  55; 


EECOtrPMENT   AKD   COHNTEECLAIM. 


281 


debt  secured  by  the  pledge,  wliere  the  pledgee  has  converted  the 
pledge.^  So  in  an  action  by  the  pledgor  against  the  pledgee, 
for  conversion  of  the  pledge,  the  latter  may  recoup  the  amount 
of  the  debt  secured  by  the  pledge.-  AYherc  a  carrier  injures 
the  goods,  loses  them  or  any  part,  or  incurs  a  hability  for 
negligent  delay  in  transportation  and  delivery,  the  damage 
therefor  may  be  recouped  in  an  action  for  freight ;  °  damages  for 
the  culpable  negligence  of  a  physician  who  carries  infection 
from  patients  having  small-pox  to  the  defendant's  family,  when 
called  to  prescribe  for  other  diseases,  may  be  recouped  against 
his  charges  for  such  services.* 

If  the  contract  has  been  executed  on  the  part  of  the  plaintiff, 
and,  therefore,  the  defendant's  contract  sued  on  is  based  upon 
an  executed  consideration,  then  any  tortious  acts  of  the  plaintiff 
subsequently  impairing,  in  fact,  that  consideration,  has  been 
deemed  an  independent  tort,  and  not  a  part  of  the  transaction, 
or  not  connected  with  the  subject  of  the  action  for  breach  of  the 
defendant's  undertaking.  Thus,  it  has  been  held  to  be  no  de- 
fense to  an  action  on  a  bill  of  exchange,  given  for  the  price  of 
goods  sold,  that  two  months  after  the  delivery  of  the  goods  to 
the  vendee,  the  vendor  forcibly  retook  possession.^     But  where 


Coit  T.  Stewart,  50  K  Y.  17;  Hatch- 
ett  T,  Gibson,  13  Ala.  587;  Pierce  v. 
Hoffman,  4  Wis.  277;  Brigliam  v. 
Hawley,  17  HI.  38;  Brady  v.  Price, 
19  Tex.  285.  See  Ward  v.  AVilson,  3 
Mich.  1,  wliere  it  was  held  that 
proof  that  the  plaintiff,  ■while  em- 
ployed as  a  cook  on  board  a  boat, 
wilfully  destroyed  the  hose  belong- 
ing to  the  boat,  should  be  excluded 
in  an  action  to  enforce  tlie  payment 
of  his  wages,  the  tort  not  appearing 
to  have  any  connection  with  his 
duties  as  cook.  Nashville  R.  R.  Co. 
V.  Chamloy,  6  Heisk.  325. 

1  Buckley  v.  Welch,  31  Conn.  339; 
Ainswoi-th  v.  Bowen,  9  Wis.  348. 

-Jarvis  v.  Rogers,  15  Mass.  389; 
Sterns  v.  Marsh,  4  Denio,  237;  Fowler 
v.  Oilman,  13  ilet.  267;  Work  v. 
Bennett,  70  Pa.  St.  484;  Brown  v. 
Phillips,  3  Bush,  656. 


sEwart  v.  Kerr,  1  McMull.  440; 
Sears  v.  Wingate,  3  Allen,  103;  Boggs 
V.  Martin,  13  B.  Mon.  239;  Ship  v. 
Nathaniel,  3  Sum.  542;  Jordan  v.  The 
Warner  Ins.  Co.  1  Story,  352;  The 
Catherine,  7  Cranch,  99;  Bradstreet 
V.  Heron,  1  Abb.  Adm.  209;  Fitch- 
burg,  etc.  Co.  V.  Hauna,  6  Gray,  539; 
Davis  V.  Patteson,  24  N.  Y.  317; 
Edwards  v.  Todd,  1  Scam.  463; 
Leech  v.  Baldwin,  5  Watts,  440; 
Humphrey  v.  Reed,  6  Whart.  435; 
Hinsdell  v.  Ward,  5  Denio,  172;  but 
see  Boraman  v.  Tooke,  1  Camp.  377, 
and  Shiels  v.  Davis,  4  Camp.  119; 
Mayne  on  Dam.  70. 

4  Piper  V.  Menifee,  12  B.  Mon. 
465. 

5  Stevens  v.  Wilkinson,  2  B.  &  Ad. 
320;  Huelet  v.  Reyus,  1  Abb.  N.  S. 
27;  Slayback  v.  Jones,  9  Ind.  473 


282  LEGAL   LIQUIDATIONS    AND   REDUCTIONS. 

a  note  was  given  for  a  judgment  assigned,  proof  tliat  tlie  as- 
signor afterwards  collected  part  of  the  judgment,  was  held  a 
defense  ^ro  tanto  to  the  note.^  In  an  action  for  the  price  of 
specific  articles  bargained  and  sold,  but  not  delivered,  the  de- ' 
fendant  may  set  up  by  way  of  recoupment,  any  injury  to  such 
articles  occasioned  by  the  fault  or  negligence  of  the  vendor,  sub- 
sequent to  the  sale  and  prior  to  the  time  of  deliveiy ;  ^  for  the  ven- 
dor's duty  was  to  keep  the  articles  sold  witli  ordinary  care,  and 
he  is  responsible  for  the  want  of  such  care  or  of  good  f aith.^  So  a 
vendee,  when  sued  for  the  price  of  land  sold,  may  recoup  for  the 
vendor's  tort  which  diminishes  the  value  of  the  property  pur- 
chased,'* or  which  consists  in  carrying  away  crops  or  fixtures 
before  the  sale  is  consummated  by  deed  and  dehvery  of  posses- 
sion.^ 

Where  a  contract  for  particular  works  has  been  entered  into, 
or  for  service,  or  for  the  sale  and  delivery  of  property,  and  there 
has  been  a  part  performance  for  which  an  action  is  maintain- 
able, in  general  assumpsit,  the  special  contract  is  a  part  of  the 
transaction  in  question.  Although  the  plaintiff  does  not  bring 
his  action  upon  it,  it  is  connected  with  the  subject  of  his  action.® 
Though  the  performance  of  the  plaintiff's  part  of  the  contract 
may  at  first  have  been  a  condition,  yet  the  defendant  may  waive 
the  right  to  forfeit  the  contract  for  non-performance,  and  yet  re- 
tain his  right  to  damages.  These  he  may  recoup  in  an  action  on 
a  quantum  meruit  or  a  <pMintum  valebat,  or  in  an  action  upon  the 
contract.'^     In  such  cases,  if  the  defendant  think  proper  to  pre- 

1  Harper  V.  Columbus  Factory,  35  480;  Hay  ward  v.  Leonard,  7  Pick. 
Ala.  127.  181;  Bowker  v.  Hoyt,  IS  Pick.  555; 

2  Borrow  v.  Window,  71  111.  214.  Barber  v.  Rose,  5  HUl,  76. 

3  McCandish  v.  Newman,  23  Pa.  7  Fabbricotti  v.  Launitz,  3  Sandf. 
St.  460;  Chinery  v.  ViaU,  5  H.  &  N.  743;  Vanderbilt  v.  The  Eagle  Iron 
288.  Works,  25  Wend.  665;  Van  Buren  v. 

^Streeter  v.  Streeter,  43  111.  155.  Diggs,  11  How.  U.  S.  461;  Harrold- 

5 Gordon  V.  Bruner,    49  Mo.    570;  son  v.  Stein,  50  Ala.   347;  Polhemus 

Grand  Lodge  v.  Knox,  20  Mo.  433;  t.  Herman,  45  Cal.  573;  Wheelock  v. 

Patterson  v.  Hulings,  10  Pa.  St.  506;  The  Pacific,  etc.  Co.  51  Cal.  223;  Up- 

Owensv.  Eector,  44Mo.  389;  but  see  ton  v.  Julian,  7  Ohio  St.  95;  Harris 

Slayback  v.  Jones,  9  Ind.  470.  v.    Rathbun,    41  N.    Y.    (2    Keyes) 

^Twitty  V.    McGuire,    3  Murphy,  312;  Hay  ward   v.    Leonard,  7  Pick. 

■501;  Grannis  v.  Linton,  30  Ga.  330;  181;  Allen  v.  McKibbin,  5  Mich.  449; 

Steamboat    Wellsville  v.    Geisse,    3  McKinney  v.  Springer,  3  Ind.  59. 

Ohio,  333;  Bishop  v.  Price,  24  Wis. 


KECOTTPMENT   A2fD    COUNTERCLAIM. 


283 


sent  liis  cross  claims  by  way  of  recoupment,  the  court  will  con- 
sider the  whole  contract  under  which  the  plaintilf's  demand 
arose,  and  direct  a  deduction  from  what  the  plaintiff  would  other- 
wise be  entitled  to  recover,  of  all  damages  sustained  by  the  de- 
fendant in  consequence  of  the  plaintiff's  failure  to  fulfil  any  or 
all  of  the  stipulations  on  his  side.^ 

On  a  sale  of  a  quantity  of  standing  wood  the  vendor  agreed  to 
indemnify  the  vendees  against  any  damage  that  might  happen 
to  the  wood  in  consequence  of  the  burning  of  an  adjoining  fal- 
low. The  vendees  gave  theh'  notes  for  the  price ;  and,  after- 
wards, the  fallow  being  burned  over,  the  wood  in  cjuestion  was 
destroj^ed  by  the  fire ;  and  it  was  held,  in  an  action  by  the  ven- 
dor upon  the  note,  that  the  vendees  might  recoup  their  damages 
arising  from  the  loss  of  the  wood.-    The  plaintiff  in  one  agree- 


1  Id. ;  Lomax  v.  Bailey,  7  Blackf . 
599;  Hollingshead  v.  Maciter,  13 
Wend.  275;  Adams  v.  Hill,  16  Me. 
215;  Koon  v.  Greennian,  7  Weud. 
121;  Ladue  v.  Seymour,  24  Wend. 
60;  Vanderbilt  v.  Eagle  Iron  Works, 
25  Wend.  665;  Brewer  v.  The  Inhab- 
itants, etc.  12  Pick.  547;  Coe  v.  Smith, 
4Ind.  79;  Major  v.  McLester,  4  Ind. 
591;  Milnes  v.  Vanliorn,  8  Blackf. 
198;  Fenton  v.  Clark,  11  Vt,  557; 
Britton  v.  Turner,  6  N.  H.  481; 
Seaver  t.  Morse,  20  Vt.  620;  Epperly 
V.  Bailey,  3  Ind.  72;  Goodwin  v. 
Morse,  9  Met.  278;  Wilkinson  v.  Fer- 
ree,  24  Pa.  St.  190;  Higgins  v.  Lee, 
16  lU.  495;  Van  Deuseh  v.  Blum,  18 
Pick.  229;  Lee  v.  Ashbrook,  14  Me. 
378;  White  v.  OUve,  36  Me.  92;  Hay- 
den  V.  Madison,  7  Greenlf.  76;  Mor- 
row V.  Huntson,  25  Vt.  9;  Boothe  v. 
Tyson,  15  Vt.  515;  Blood  v.  Enos,  12 
Vt.  625;  Preston  v.  Tenney,  2  W.  & 
S.  53;  Liggett  v.  Smith,  3  Watts, 
331;  Danville  Bridge  Co.  v.  Pome- 
roy,  15  Pa.  St.  151;  Allen  v.  Robin- 
son, 2  Barb.  341;  Jewell  v.  Weston, 
11  Me.  346;  Rogers  v.  Humphreys,  39 
Me.  382. 

2Batterman  v.  Pierce,  3  Hill,  171. 
This  was  an  early  and  leading  case 


on  the  subject  of  recoupment,  and 
Bi'ouson,  J.,  comprehensively  states 
the  doctrine  underlj-ing  and  govern- 
ing it.  He  said : ' '  When  the  demands 
of  both  parties  spring  out  of  the 
same  contract  or  transaction,  the  de- 
fendant may  i-ecoup,  although  the 
damages  on  both  sides  are  unliqui- 
dated. ...  It  was  formerly 
supposed  that  there  could  only  be  a 
recoupment  where  some  fraud  was 
imputable  to  the  plaintiff  in  re- 
lation to  the  contract  on  which  the 
action  is  founded;  but  it  is  now  well 
settled  that  the  doctrine  is  also  ap- 
pUcable  when  the  defendant  imputes 
no  fraud,  and  only  complains  that 
there  has  been  a  breach  of  the  con- 
tract on  the  part  of  the  plaintiff. 
For  the  purpose  of  avoiding  a  circu- 
ity, or  the  multiplication  of  actions, 
and  doing  complete  justice  to  both 
parties,  they  are  allowed  and  com- 
pelled, if  the  defendant  so  elect,  to 
adjust  aU  their  claims  growing  out 
of  the  same  conti'act  in  one  action. 
It  was  well  remarked  by  Chancellor 
Walworth,  in  Reab  v.  McAllister,  8 
Wend.  109,  that  '  there  is  a  natural 
equity,  especially  as  to  claims  arising 
out  of  the  same  transaction,  tliat  one 


284 


LEGAL   LIQUroATIONS    AND   EEDUCTIONS. 


ment  agreed  to  deliver  fortliwith  a  quantity  of  dressed  pork  to 
the  defendant  for  a  certain  price ;  and  also  to  sell  him,  upon 
their  arrival,  at  a  different  price,  a  number  of  live  hogs  then  on 
the  ^ya.y,  and  expected  in  a  few  days ;    no  stijiulation  being 


claim  should  compensate  the  other, 
and  that  the  balance  only  should  be 
recovered.'  The  defendant  has  the 
election  whether  he  will  set  up  his 
claim  in  answer  to  the  plaintiff's  de- 
mand, or  resort  to  a  cross  action; 
and  whatever  may  be  the  amount  of 
his  damages,  he  can  only  set  them 
up  by  way  of  abatement,  either  in 
whole  or  in  part  of  the  plaintiff's 
demand.  He  cannot,  as  in  case  of 
set-off,  go  beyond  that,  and  have  a 
balance  certified  in  his  favor.  It  is 
no  objection  to  the  defense  that  the 
plaintiff  is  not  suing  upon  the  origi- 
nal contract  of  sale,  but  upon  a  note 
given  for  the  purchase  money.  Tlie 
promise  of  the  defendants  to  pay  the 
purchase  money  has  undergone  the 
slight  modification  of  being  put  into 
the  form  of  a  written  obligation, 
and  on  that  the  action  is  founded; 
but  still  the  plaintiff  is  in  effect 
seeking  to  enforce  the  original  con- 
tract of  sale,  and  the  question  must 
be  settled  in  the  same  manner  as 
though  the  action  was,  in  form,  upon 
that  contract.  But  the  objection 
still  remains,  and  it  has  been  strenu- 
ously urged  against  the  defense,  that 
the  damages  claimed  by  the  defend- 
ants do  not  spring  out  of  the  con- 
tract of  sale,  but  arise  under  the 
collateral  agreement  of  the  plaintiff 
to  indemnify  against  fire.  It  is  un- 
doubtedly true  that  there  can  be  no 
recoupment  by  setting  up  the  breach 
of  an  independent  contract  on  the 
part  of  the  plaintiff.  But  that  is 
not  this  case.  Here  there  were  mu- 
tual stipulations  between  the  parties, 
all  made  at  the  same  time,  and  relat- 
ing to  the  same  subject  matter;  and 
there  can  be  no  difference,  in  princi- 


ple, whether  the  whole  transaction 
is  embodied  in  one  written  instru- 
ment setting  forth  the  cross  obliga- 
tions of  both  parties,  or  whether  it 
takes  the  form  of  a  separate  and  dis- 
tinct undertaking  by  each  party. 
The  plaintiff  pi-oj^osed  to  sell  his 
wood  at  auction,  and  as  an  induce- 
ment to  obtain  a  better  price,  he 
stipulated  with  the  bidders  that  they 
should  have  two  winters  and  one 
summer  to  get  away  the  wood,  and 
that  in  the  meantime  he  would  in- 
sure them  against  the  consequence 
of  setting  fire  to  his  adjoining  fallow 
grounds.  Upon  these  terms  the  pur- 
chase Avas  made  by  the  defendant. 
.  .  .  The  nature  of  the  transac- 
tion cannot  be  changed  by  putting 
the  several  stipulations  of  the  parties 
into  distinct  written  contracts;  nor 
can  it  make  any  substantial  differ- 
ence that  the  undertaking  of  one 
party  has  been  reduced  to  writing, 
while  the  engagement  of  the  other 
l^arty  remains  in  parol.  In  sub- 
stance, it  is  still  the  case  of  mutual 
stii^ulations  between  the  same  par- 
ties, made  at  the  same  time,  and  re- 
lating to  the  same  subject  matter. 
The  forms  which  the  parties  may 
have  adopted  for  the  purpose  of 
manifesting  then-  agreement  cannot 
affect  their  rights  so  far  as  this  ques- 
tion is  concerned.  Wliether  all  the 
mutual  undertakings  have  been  em- 
bodied in  one  written  instrument,  or 
in  several,  or  wliether  some  have 
been  put  upon  paper  wliile  others 
rest  in  parol,  the  reason  still  remains 
for  allowing  the  claims  of  both  par- 
ties growing  out  of  the  same  trans- 
action to  be  adjusted  in  one  action." 


RECOUPMENT   AND   COUNTERCLAIM.  285 

made  as  to  the  time  of  payment  for  either.  It  was  held  that 
the  plaintiff  was  entitled  to  recover  the  smn  stipulated  for  the 
dressed  pork,  notwithstanding  that  after  it  became  due  a  breach 
of  the  stipulation  in  respect  to  the  hve  hogs  had  accrued,  but 
subject  to  recoupment  of  the  defendant's  damages  for  such 
breach.^ 

These  are  instances  of  cross  claims  arising  from  the  same  con- 
tract. Stipulations  are  parts  of  the  same  contract  for  the  pur- 
pose of  this  defense,  though  they  relate  to  distinct  subjects,  and 
a  different  time  of  performance,  and  a  distinct  and  severable 
compensation  is  provided  for  each ;  so  any  implied  or  express 
warranty  or  guaranty  which  forms  part  of  the  consideration  of 
the  defendant's  undertaldng,  which  is  the  foundation  of  the 
plaintiff's  action,  is  part  of  the  same  contract ;  and  all  damages 
to  which  the  defendant  is  entitled  thereon,  may  be  recouped  in 
such  action.  Many  examples  have  been  given.  In  actions  be- 
tween landlord  and  tenant,  they  have  each  the  right  to  recoup 
-damages,  in  the  other's  action,  brought  on  the  covenants  in  the 
lease,  or  those  which  are  implied  from  the  relation.  Although 
there  be  a  written  lease  or  even  an  indenture,  containing  express 
stipulations  and  covenants ;  if  others  are  implied,  the  latter  be- 
long to  and  are  parts  of  the  same  contract.^ 

The  landlord  unpliedly,  in  the  absence  of  an  express  agree- 
ment defining'  his  oblio-ation  in  that  reg-ard,  undertakes  for  the 
quiet  enjoyment  of  the  premises  by  his  tenant,  as  against  any 
hostile  assertion  of  a  paramount  title ;  and  that  so  far  as  he  is 

1  Tipton  V.  Finer,  20  N.  Y.  433;  15  N.  Y.  151;  Rogers  v.  Ostram,  35 
Prairie  Farmer  Co.  v.  Taylor,  69  111.  Barb.  523;  Wade  v.  Halligan,  16  111. 
440;  Cherry  v.  Sutton,  30  Ga.  875.  528;  Hatfield  v.  Fullerton,  24  III.  278; 

2  Burroughs  v.  Claucey,  53  111.  30;  Lindley  v.  MiUer,  67  111.  244;  West- 
Gregory  v.  Scott,  4  Scam.  392 ;  Dodd  lake  V.  DeGraw,  25  Wend.  669; 
V.  Tower,  3  Ind.  427;  Slack  v.  McLa-  Lunn  v.  Gage,  37  111.  19;  Guthman 
gan,  15  111.  242;  Blair  v.  Claxton,  4  v.  Castleberry,  49  Ga.  272;  Tone  v. 
N.  Y.  529;  Murray  v.  Pennington,  3  Bruce,  8  Paige,  597;  Graves  v.  Ber- 
Gratt.  91;  Vining  v.  Luman,  45  111.  dan,  26  N.  Y.  598;  Vernam  v.  Smith, 
248;  Hobein  v.  Drewell,  20  Mo.  450;  15  N.  Y.  328;  Myers  v.  Burns,  35  N. 
Lynch  V.  Baldwin,  69  111.  210:  Whit-  Y.  269;  Hexter  v.  Knox,  63  N.  Y. 
beck  V.  Skinner,  7  Hill,  53;  Mack  v.  561;  Eldred  v.  Leahy,  31  Wis.  546; 
Patchen,  42  N.  Y.  167;  Whitney  v.  Morgan  v.  Smith,  5  Hun,  220;  Com- 
Myers,  1  Duer,  267;  Chatterton  mouwealth  v.  Todd,  9  Bush,  708; 
■V.  Fox,  5  Duer,  64;  Mayor  v.  Mabie,  Holbrook  v.  Young,  108  Mass.  83. 


286 


LEGAL    LIQUIDATIONS    AND   KEDUCTIONS. 


concerned,  he  will  do  no  act  to  interrupt  the  tenant's  free  and 
peaceable  possession  for  the  term  granted.^  For  any  violation 
or  breach  of  this  obligation,  the  tenant  may  recoup  his  dam- 
ages in  any  action  of  the  landlord  against  him  based  on  his  Ua- 
bihties  as  a  tenant.^  But  for  mere  tortious  acts  of  interference 
by  the  landlord  with  the  demised  premises,  not  done  in  the  asser- 
tion of  a  right,  not  amounting  to  an  eviction,  damages,  by  way 
of  recoupment,  have  been  denied.^ 

Where  a  cross  claim  exists  in  favor  of  the  tenant,  he  may 
avail  himself  of  it  not  only  in  an  action  against  him  by  the 
landlord  on  the  contract,  but  also  in  replevin  of  property  de- 
strained  for  rent ;  *  but  not  in  a  summary  proceeding  for  posses- 
sion based  on  the  determination  of  the  lease  by  forfeiture.' 

In  an  action  for  rent  the  defendant  may  show  that  the  plaintiff 
agreed  to  build  a  fence,  or  make  certain  repau^s  or  other  im- 
provements, and  has  neglected  to  perform  the  agreement.^ 


1  Mayor  V.  Mabie,  13  N.  Y.  151;  Dex- 
ter V.  Manley,  4  Cush.  14;  Brad- 
ley V.  Cart  Wright,  9  Exch.  913;  36 
L.  J,  C.  P.  218;  Cox  v.  Clay,  5  Bing. 
439;  Maule  v,  Ashmead,  20  Pa.  St. 
482;  Hart  v.  Smith,  2  A.  K.  Marsh. 
801;  Youug  V.  Hargrave,  7  Ohio, 
2d  pt.  63. 

2  Mayor  v,  Mabie,  13  N. .  Y.  151; 
Wade  V.  Hallegan,  16  111.  507;  Lynch 
V.  Baldwin,  60  III.  210;  Rogers  v. 
Osti-am,  35  Barb.  523;  Chatterton  v. 
Fox,  5  Duer,  64. 

3  Bartlett  v.  Farrington,  120  Mass. 
284;  Campbell  v.  Shields,  11  How. 
Pr.  565;  Drake  v.  Cockroft,  10  How. 
Pr.  377;  Walker  v.  Slioemaker,  4 
Him,  579;  Lounsberry  v.  Suyder,  31 
N.  Y.  514;  Ogilvie  v.  Hall,  5  Hill,  52; 
Valet  V.  Horner,  1  Hilt.  149;  Cram 
V.  Dresser,  2  Sandf.  120. 

4  Nichols  V.  Dusenbury,  2  N.  Y, 
283;  Fowler  v,  Payne,  4  Miss.  32; 
Breese  v.  McCann,  52  Vt.  498;  Fair- 
man  V.  Fluck,  5  Watts,  516;  Guth- 
man  v.  Castleberry,  49  Ga.  272; 
Phillips  V.  Munger,  4  Whart.  225; 
Peterson  v.  Haight,  3  Whart.  149; 


Warner  v.  Caulk,  3  Whart.  193; 
Wade  V.  HaUegan,  16  111.  506;  Hat- 
field V.  FtiUerton,  24  111.  278;  Lind- 
ley  V.  Miller,  67  111.  244,  Where  the 
board  of  supervisors  allowed  a  claim 
for  repairing  a  bridge,  and  issued  a 
warrant  therefor,  and  afterwards  the 
claimant  committed  a  breach  of  his 
contract  by  failing  to  keep  it  in  re- 
pair pursuant  to  his  bond,  and  he 
and  his  sureties  became  insolvent, 
held,  that  the  board,  in  an  action  of 
mandamus  to  compel  payment  of  the 
warrant,  could  recoup  the  breach, 
occurring  before  notice  of  assign- 
ment, against  the  assignee  of  the 
warrant.  Supervisors  v.  Arrghi,  51 
Miss.  668. 

5  McSloy  v.  Ryan,  27  Mich.  110; 
D'Amondv.  Pillen,  13  La.  Ann.  137; 
Johnson  v.  Hoffman,  53  Mo.  504. 

6  Miller  v.  Gaither,  3  Bush,  152; 
Myers  v.  Bums,  35  N.  Y.  269;  Hexter 
V.Knox,  63  N.  Y.  561;  Guthman  v. 
Castleberry,  49  Ga.  272;  Freeman  v. 
Fluck,  5  Watts,  516;  Luna  v.  Gage, 
37  III.  19. 


EECOUTMENT   AND   COrNTEECLAIM. 


281 


Wliere  the  "basis  of  tlie  transaction  "between  the  parties  is  a 
contract,  and  the  breach  of  the  contract  amounts  to  a  trespass, 
or  entitles  the  injured  party  to  an  action  for  neghgence,  or 
fraud,  or  to  any  action  ex  delicto,  \iq  is  not  deprived  of  his 
right  to  set  oif  such  a  claim,  nor  the  other  party  to  set  off  a 
claim  arising  upon  the  contract  against  such  a  cause  of  action. 
In  all  such  cases,  there  being  a  contract  between  the  parties,  in 
fact,  the  party  in  default  is  not  allowed  to  deprive  the  injured 
party  of  the  right  to  take  advantage  of  such  default  by  way  of 
recoupment  or  counterclaim,  b}^  alleging  that  the  contract  was 
tortiously  violated.^ 


1  Morrison  v.  Lovejoy,  6  Minn. 
319;  Hatchett  v.  Gibson,  13  Ala. 
587;  WiUiams  v.  Schmidt,  54  lU. 
205;  Cbambret  v.  Cogney,  2  Swee- 
ney, 378;  Starbird  t.  Barron,  43 
N.Y.  200;  S.  C.  41  How.  Pr.  125;  Wad- 
ley  V.  Davis,  63  Barb.  500;  Griffin  v. 
Moore,  52  Ind.  295;  Mc Arthur  v. 
Green  Bay,  etc.  Co.  34  Wis.  139; 
Billing  V.  Thraxton,  72  N.  O.  541; 
Price  V.  Lewis,  17  Pa.  St.  51;  Gogie 
V.  Jacoby,  5  S.  &  R.  450;  Scott  v. 
Renton,  81  111.  96.  See  Scheunert  v. 
Koehler,  23  AVis.  523.  In  Connor  v. 
Winton,  7  Ind.  523,  the  court  defined 
a  counterclaim  to  be  that  which 
might  have  arisen  out  of,  or  could 
have  had  some  connection  with  the 
original  transaction  in  the  view  of 
the  parties;  and  which  at  the  time 
the  contract  was  made,  they  could 
have  intended  might  in  some  event 
give  one  party  a  claim  against  the 
other  for  compliance  or  non-compli- 
ance with  its  provisions.  In  Stray- 
back  V.  Jones,  9  Ind.  472,  the  court, 
referring  to  recoupment  and  coun- 
terclaim, said:  "They  relate  more 
especially  to  damages  for  breach  of 
contract  which  may  be  recouped  in 
a  suit  for  what  may  have  been  done 
or  rendered  in  part  performance  of 
a  contract.  In  sucli  cases  the  cause 
of  action  and  defense  are  jiart  of 
the  same  transaction."  In  Lovejoy  v. 


Robinson,  8  Ind.  399,  the  court  say 
that  trespasses  cannot  be  made  to 
compensate  each  other  by  any  form 
of  ijleading.  In  Barhyte  v.  Hughes, 
33  Barb.  320,  the  word  "  transaction" 
was  construed  to  refer  to  business 
dealings,  and  did  not  include  torts. 
MacDougaU  v.  Maguire,  35  Cal.  274. 
Where  there  is  no  contract  relation 
between  the  parties  touching  the 
subject  in  question,  mutual  torts 
committed  at  the  same  time  or  in 
such  succession  or  sequence  as 
would  make  them  parts  of  the  res 
gestce  cannot  be  made  the  basis  of 
recoupment  or  counterclaim.  In 
an  action  for  assault  and  battery,  the 
defendant  cannot  counterclaim  or 
recoup  for  a  battery  committed  at  the 
same  affray  by  the  plaintiff  on  the 
defendant  (Schnaderbeck  v.  Worth, 
8  Abb.  37);  nor  can  the  defendant,  in 
an  action  for  slander,  counterclaim 
for  Slanderous  words  uttered  by  the 
plaintiff.  Kemp  v.  Amalker,  13  La. 
Ann.  65.  In  Ashins  v.  Hearne,  3 
Abb.  p.  184,  Justice  Emott  thought  a 
counterclaim  could  not  be  sustained 
upon  the  following  facts:  The 
plaintiff  sued  for  damages  for  con- 
version of  a  ring.  The  defendant 
alleged  an  exchange  of  rings,  each 
to  be  kept  until  the  other  should  be 
returned,  and  averred  a  tender  of 
the  one  and  demand  of  the  other, 


288 


LEGAL    LIQUIDATIONS    AND    EEDUCTIONS. 


On  the  same  principles,  recoupment  is  reciprocally  available 
between  vendor  and  purchaser  of  real  estate,  as  well  as  of  personal 
property.     If  the  buyer  of  goods  bring  an  action  against  the 


and  asked  judgment  for  his  ring. 
Such  a  counterclaim  would  now  be 
allowed  without  hesitation.  Hoff- 
man, J.,  said  of  this  case,  that  "a 
distinction  may  be  suggested,  that 
■where  the  ground  of  each  claim  is 
really  a  contract,  although  the  form 
of  action  under  the  old  system 
would  be  for  a  wrong,  then,  when 
the  transaction  which  gives  rise  to 
each  is  the  same,  the  code  is  broad 
enough  to  include  a  counterclaim. 
The  exchange  alleged  of  the  rings 
was,  in  fact,  a  mutual  agreement." 
Xenia  Branch  Bank  v.  Lee,  7  Abb. 
377.  In  this  case,  Woodruff,  J., 
said:  "The  great  question  in  con- 
troversy is,  In  an  action  in  the  nat- 
ure of  trover  by  a  plaintiff  who  has 
indorsed  notes  or  bills  of  exchange, 
brought  to  recover  the  value  thereof 
from  a  defendant  in  whose  i)osses- 
sion  they  are,  and  who  claims  title 
thereto  through  the  plaintiff's  in- 
dorsement, can  the  defendant  set  up 
title  in  himself,  demand  of  pay- 
ment, protest,  and  notice,  and  ask 
by  way  of  counterclaim  a  judg- 
ment against  the  plaintiff  as  in- 
dorser?"  It  was  decided  in  the 
affirmative.  After  quoting  subd.  1 
and  2  of  §  150  of  the  N.  Y.  code,  this 
learned  judge  said:  "This  division 
of  the  section  shows  that  there  may 
be  a  counterclaim  when  the  action 
itself  does  not  arise  on  contract;  for 
the  second  clause  is  expressly  con- 
fined to  actions  arising  upon  con- 
tract, and  allows  counterclaims,  in 
such  cases,  of  any  other  cause  of 
action  also  arising  on  contract;  and 
this  may  embrace  probably  all  cases 
heretofore  denominated  '  set-off,' 
legal  or  equitaV>le,  and  any  other 
legal    or    equitable    demand,    liqui- 


dated or  unliquidated,  whether 
within  the  proper  definition  of  set- 
off or  not,  if  it  arise  on  contract. 
Gleason  v.  Maer,  3  Duer,  639.  The 
first  subdivision  would  therefore  be 
unmeaning  as  a  separate  definition, 
if  it  neither  contemplated  cases  in 
which  the  action  was  not  brought 
on  the  contract  itself  in  the  sense  in 
which  these  w^ords  are  ordinarily 
used,  nor  counterclaims  which  did 
not  themselves  arise  on  contract. 
The  first  subdivision  by  its  terms 
assumes  that  the  plaintiff's  com- 
plaint may  set  forth,  as  the  founda- 
tion of  the  action,  a  contract  or  a 
transaction.  The  legislature,  in 
using  both  words,  mxist  be  assumed 
to  have  designed  that  each  should 
have  a  meaning;  and  in  our  judg- 
ment, this  construction  should  be 
according  to  the  natui'al  and  ordi- 
nary signification  of  the  tei'ms.  In 
this  sense,  every  contract  may  be 
said  to  be  a  transaction,  but  every 
transaction  is  not  a  contract.  Again; 
the  second  subdivision  having  pro- 
vided for  aU  counterclaims  arising 
on  contract  —  in  all  actions  arising 
on  contract  —  no  cases  can  be  sup- 
posed to  which  the  first  subdivision 
can  be  applied  unless  it  be  one  of 
three  classes,  viz. : 

"1st.  In  actions  in  which  a  con- 
tract is  stated  as  the  plaintiffs 
claim  —  counterclaims  which  arise 
out  of  the  same  contract;  or, 

' '  2d.  In  actions  in  which  some 
transaction,  not  being  a  contract,  is 
set  forth  as  the  foundation  of 
the  plaintiff's  claim  —  counterclaims 
which  arise  out  of  the  same  trans- 
action; or, 

* '  3d.  In  actions  in  which  eitner  a 
contract,  or  a  transaction  which  is 


EECOUPMENT   AND    CODNTEKCLAIM.  289 

seller  for  not  completing  the  contract,  tlie  latter  may  counter- 
claim or  recoup  for  the  goods  already  delivered.^  And  so  in  an 
action  by  the  vendor  to  recover  the  price  of  goods  sold  and 
only  dehvered  in  part,  the  purchaser  may  recoup  any  dam- 
ages sustained  by  hnn  by  reason  of  the  failure  or  refusal  to 
dehver  the  residue ;  ^  and  in  an  action  by  the  seUer  for  the  price, 
the  buyer  may  recoup  for  any  deficiency  in  quantity,  delay  in 
deUvery  or  breach  of  warranty,*  So  in  an  action  on  a  note 
given  for  the  good  v^ill  of  a  business,  the  defendant  may  recoup 
his  damages  resulting  from  the  plaintiff's  resumption  of  that 
business ;  *  and  in  an  action  on  an  agreement  not  to  set  up  busi- 
ness in  a  certain  place,  the  defendant  may  recoup  the  amount 
agreed  to  be  paid  for  the  good  will.^ 

In  debt  on  a  bond  given  for  real  estate  or  other  action  for  the 
price,  the  defendant  may  recoup  his  damages  for  the  plaintiffs 
breach  of  an  agreement  to  give  possession,  as  well  as  for  injury 
to  the  premises,^  or  for  a  violation  of  an  agreement  to  dig  a  well 
on  the  premises  soldJ  So  a  vendee's  action  to  recover  back  the 
purchase  money  is  subject  to  recoupment  for  his  neghgent  de- 
stiTiction  of  the  subject  of  the  purchase.^    Eecoupment  has  been 

not  a  contract,  is  set  forth  as  the  connected  with  the  subject  of  the 

foundation  of  the  plaintiff's  claim  —  action.     Thompson  v.  Kessel,  30  N. 

counterclaims  which  neither  arise  Y.  383;  Brown  v.  Buckingham,  11 

out  of  the  same  contract,  nor  out  of  Abb.  387. 

the  same  transaction,  but  which  are  i  Leavenworth  v.  Packer,  52  Barb. 

connected  with  the  subject  of  the  132. 

action."  SHarrollson  v.  Stein,  50  Ala.  347; 

In  the  Glen  &   Hall    M.   Co.   v.  Piatt  v.  Brand,  26  Mich.  173;  Bowker 

Hall,  61   N.   Y,  226,  an  action  was  v.  Hoyt,  18  Pick.  555. 

brought  to  restrain  defendant  from  ^Cook    v.    Prebbles,    80    111.  381; 

using  the  defendant's  trade  mark;  Hitchcock  v.  Hunt,  28  Conn.  343; 

the  defendant  claimed  it  was  his,  Stiegeman  v.  Jefferies,  1  S.  &  R.  477. 

and  asked  damages  for    plaintiff's  ^Warfield   t.  Booth,    33    Md.   63; 

use  of  it  by  way  of  counterclaim,  Herbert  v.  Ford,  29  iSIe.  546. 

and  it  was  held  to  be  a  proper  coun-  5  Baker  v.  Connell,  1  Daly,  469. 

terclaim.  6  Patterson  v.  Hulings,  10  Pa.  St. 

A  claim  on  the  part  of  the  de-  506;  Owens  v.  Rector,  44  Mo.  389; 

fendant  for  the  price  and  value  of  Gordon  v.  Bruner,  49  Mo.  570;  Grand 

the  identical  goods  wliich  are  the  Lodge  v.  Knox,  20  Mo.  433;  Streetor 

subject  of  the  action,  is  a  cause  of  v.  Streeter,  43  111.  155. 

action  arising  out  of  the  same  trans-  ^  Maguire  v.    Howard,  40  Pa.  St. 

action    alleged    as    the    foundation  391. 

of  the  plaintiff's  claim,  or  is  at  least  8  Hatchell  v.  Gibson,  13  Ala.  587. 
Vol.  1  —  19 


290  LEGAL    LIQUIDATIONS    AND   KEDTJCTI0N8. 

allowed  in  a  suit  for  purchase  money  for  damages  done  to  the 
premises  by  an  adverse  claimant,  pending  a  litigation  with  the 
vendor,  in  which  the  latter's  title  was  maintained ;  because,  as 
plaintiff,  he  could  have  indemnified  himself  against  the  spoliator 
by  recovery  of  iniesne  profits.^ 

It  is  well  settled  that  when  a  deed  has  been  made  and  ac- 
cepted, and  possession  taken  under  it,  defects  in  the  title  will 
not  enable  the  purchaser  to  resist  the  payment  of  the  purchase 
money;  or  recover  more  than  nominal  damages  on  his  cove- 
nants for  title ;  except  in  some  states  on  the  covenant  of  seizin ; 
while  he  retains  the  deed  and  possession,  and  has  been  subjected 
to  no  inconvenience  or  expense  on  account  of  the  defect.^ 
Though  if  no  title  or  possession  passed  by  the  deed,  it  would 
seem  that  any  undertaking  for  payment  of  the  purchase  money 
would  be  void  for  want  of  consideration,  notwithstanding  the 
co^^enants  in  the  deed.^ 

A  vendee  is  authorized  to  extinguish  an  incumbrance  or  to 
remedy  a  defect  of  title,  after  a  breach  of  the  covenant  of  war- 
ranty, without  a  special  request  or  consent  of  the  vendor,  and 
may  recoup  the  amount  reasonably  paid  for  that  purpose,  in  an  ac- 
tion for  purchase  money,  where  there  are  covenants  for  title  and 
against  incumbrances.^     So  the  vendee  may  recoup  his  damages 

1  Worklaud  v.  Hoffman,  50  Pa.  St.  v.  Vinson,  20  Pick.  105;  Key  v.  Hen- 

513.  son,  17  Ark.  254;  Tillotson  v.  Grapes, 

2Whisler  v.  Hicks,  5  Blackf.  100;  4  N.  H.  444. 
Delavergne  v.  Norris,  7  John.  358;         ■*  Delavergne    v.    Morris,    7  John. 

Stanard  v.  Eldridge,  16  John.  254;  358;  Stanard  v.   Eldridge,  66  John. 

Stephens  v.  Evans,  30  lud.  39;  Mar-  254;  Johns  v.  Collins,  116  Mass.  293; 

vin  V.  Applegate,  18Ind.  425;  Brandt  Leffingwell  v.  Elliott,  10  Pick.  204; 

V.  Foster,  5  Iowa,  287;  McCastin  v.  Brooks  v.  Moody,  20  Pick.  474;  Nor- 

The  State,  44  Ind.  101;  Edwards  v.  ton  v,  Babcock,  2  Met.   210;   Dore- 

Bodine,  26  Wend.  109;  Abbot  v.  Al-  mus  v.  Bond,  8  Blackf.   308;  Baker 

len,   2  John.   Ch.    519;   Bumpus  v.  v.  Railsbach,  4  Ind.  533;  Brandt  v. 

Platner,  1  John,  Ch.  213;  Faruham  Foster,    5    Iowa,   287;   McDaniel   v. 

V.  Hotchldss,  2  Keyes,  9.     But  see  Grace,    15     Ark.    465;    Lamson    v. 

Walker  v.  Wilson,  13  Wis.  522;  Hull  Marvin,  8  Barb.  11;  Detroit  &  M.  R. 

V.  Gale,  14  Wis.  54;  Akertz  v.  Vdas,  R.  Co.  v.  Griggs,  13  Mich.  45;  Stdl- 

21  Wis.  88;  Edwards  v.  Tallmadge,  well  v.  Chappell,  30  Ind.  72;  Brown 

22  Wis.  522;  Lowry  v.  Hurd,  7  Minn.  v.  Crowley,  39  Ga.  376;  Dean  v.  Har- 
356;  Scantlin  v.  Allison,  12  Kan.  85;  rold,  37  Pa.  St.  150;  Key  v.  Henson, 
Tarpley  v.  Poage,  2  Tex.  139.  17  Ark.  254;  Brown  v.  Stark,  3  Dana, 

3  Dickinson  v.  Hall,  14  Pick.  217;  316;  Park  v.  Clements,  16  Ind.  132; 
Rice  V.  Goddard,  14  Pick.  293;  Trask     Scuchman  v.   Knoebel,   27  lU.  175; 


KECOUPMENT   AND   COUNTERCLAIM. 


291 


on  the  covenant  of  warranty  after  the  title  has  failed  and  there 
has  been  an  eviction,  or  what  is  equal  thereto.^  In  some  of  the 
states,  however,  the  defense  for  partial  failure  of  title  to  real 
estate  is  not  allowed  at  law  in  actions  for  the  price.'^ 

jS"o  difference  is  made  as  to  the  exercise  of  this  right  of  re- 
coupment whetlier  the  plaintiff's  action  is  brought  on  the  origi- 
nal contract,  or  on  a  note  or  other  security  given  for  the  price, 
and  the  latter  under  seal.'  Such  a  distinction,  however,  seems 
to  be  recognized  in  England.  In  an  action  on  a  bill  of  exchange 
for  goods  supplied,  which  were  "  to  be  of  good  quahty  and 
moderate  price,"  and  were  estimated  at  about  400^.,  and  bills 
were  given  for  that  amount,  it  was  held  to  be  no  defense  that 
the  goods  turned  out  to  be  worth  much  less  than  the  estimated 
price.  Lord  Tenterden  said :  "  The  cases  cited  by  the  plaintiffs 
have  completely  estabhshed  the  distinction  between  an  action 
for  the  price  of  the  goods,  and  an  action  on  the  security  given 
for  them.  In  the  former,  only  the  value  can  be  recovered ;  in 
the  latter,  I  take  it  to  have  been  settled  by  these  cases,  and 
acted  upon  ever  since  as  law,  that  a  party  holding  biUs  given 
for  the  price  of  goods  supplied,  can  recover  upon  them,  unless 


Qiristy  v.  Ogle,  33  lU.  295;  Holman 
V.  Creagmiles,  15  Ind.  177;  Kent  v. 
Cartrall,  44  Ind.  452;  Robins  v  Lis- 
ter, 30  Ind.  142;  Davis  v.  Bean,  114 
Mass.  358;  Scantlin  v.  Allison,  12 
Kan.  85;  McKee  v.  Bain,  11  Kan.  569. 

1  McDaniel  v.  Grace,  15  Ark.  487 
Talmage  v.  Wallis,  25  Wend.  107 
Sargent  v.  Kellogg,  5  Gilinan,  273 
Edwards  v.  Todd,  1  Scam.  462 
Nichols  V.  Ruckles,  3  Scam.  299 
Kaskaskia  Bridge  Co.  v.  Shannon,  1 
Oilman,  15;  Wilson  v.  Burgess,  34 
HI.  494;  Coster  v.  Monroe  M.  Co.  1 
Oreen's  Ch.  467;  Tone  v.  Nelson,  81 
lU.  529;  McDowell  v.  miroy,  69  lU. 
498. 

-CuUum  V.  Bank  of  Mobile,  4 
Ala.  21;  Stark  v.  Hill,  6  Ala.  785; 
Tankersly  v.  Graham,  6  Ala.  247; 
Cole  V.  Justice,  8  Ala.  793;  Knight 
V.  Turner,  11  Ala.  636;  Potter  v. 
England,  15  Ala.  71;   McLemore  v. 


Mobson,  20  Ala.  137;  Thompson  v.L 
Christian,  28  Ala.  399;  Holvenstein 
V.  Higginson,  35  Ala.  259;  Went- 
wortli  V.  Goodwin,  21  Me.  154;  Jen- 
ness  V.  Parker,  24  Me.  294;  Herbert 
V,  Ford,  29  Me.  546;  Mon-ison  v. 
JeweU,  34  Me.  146;  Thompson  v, 
Mansfield,  48  Me.  490;  Wheat  v.  Dot- 
son,  12  Ark.  699;  Bowley  v.  Halway, 
124  Mass.  395. 

s  Harrington  v,  Stratton,  23  Pick, 
510;  Van  Epps  v.  Harrison,  5  Hill, 
63;  Judd  v.  Dennison,  10  Wend.  512; 
Payne  v.  Cutler,  13  Wend.  605; 
Goodwin  v.  Morse,  9  Met.  278;  Par- 
ket  V.  Gregory,  2  Scam.  44;  Christy 
V.  Ogle,  33  ni.  295;  Hitchcock  v. 
Hunt,  28  Conn.  343;  Mears  v.  Nicliols, 
41  m.  307;  Kellogg  v.  Denslow,  14 
Conn.  411;  Wilmot  v.  Hurd,  11 
Wend.  585;  Dailey  v.  Green,  3  Har- 
ris, 118;  Ward  v.  Reynolds,  32  Ala, 
384;  Key  v.  Henson,  17  Ark.  254. 


292  LEGAL    LIQUIDATIONS    AND   KEDUCTIONS. 

there  has  been  a  total  failure  of  consideration.  If  the  consid- 
eration fails  partially,  as  by  the  inferiority  of  the  article  fur- 
nished to  that  ordered,  the  buyer  must  seek  his  remedy  by  cross 
action.  The  warranty  relied  on  in  this  action  makes  no  dif- 
ference." ^ 

In  Wisconsin  it  has  been  held  that  where  notes  are  given  for  the 
contract  price,  they  are  not  payment,  unless  so  agreed ;  and  in 
a  suit  upon  one  of  several  such  notes,  it  will  be  presumed  in  the 
absence  of  evidence,  that  those  not  yet  due  are  still  in  the  ven- 
dor's hands,  and  that  it  is  error  to  render  judgment  for  the  de- 
fendant on  a  counterclaim  for  the  excess  of  his  damages  for 
breach  of  warranty  over  the  note  in  suit.^  It  was  held  to  be 
unjust  to  allow  the  defendants  full  damages  for  breach  of  war- 
ranty, the  same  as  though  they  had  paid  for  the  property,  when 
these  damages  largely  exceed  the  amount  sued  for. 

3.  It  is  immaterial  whether  the  damages  which  a  defendant 
seeks  to  recoup  or  counterclaim^  are  liquidated  or  unliquidated^ 
nor  is  it  Tnaterial  whether  the  plaintiff'' s  demand  is  liquidated  or 
not? 

The  theory  of  this  defense  being  the  setting  off  of  the  dam- 
ages on  one  cause  of  action  against  those  recoverable  on  an- 
other, to  avoid  the  necessity  of  other  suits,  where  both  arise  out 
of  the  same  transaction,  the  defendant  puts  forward  a  substan- 
tive cause  of  action ;  becomes  an  actor  to  assert  and  prove  it, 
with  no  other  hampering  conditions  than  would  apply  to  him 
as  plaintiff  in  a  separate  action  upon  his  claim.  When  it  appears 
to  be  so  connected  with  the  subject  of  the  plaintiff's  action  as 
to  be  available  as  a  counterclaim,  or  by  way  of  recoupment,  it 


1  Obhard  v.  Betham,  Moo.  &  M.  483 
Morgan  v.  Richardson,  1  Camp.  40 
Day  V.  Nix,  J.  B.  Moore,  159 
Trickey  v.  Larne,  6  M.  &  W.  278 
Gascoyne  v.  Smith,  McC.  &  Y.  338 
Warwich    v.    Nurn,    10    Exch,  763 


Van  Buren  v.  Diggs,  11  How.  U.  S. 
451;  McLure  v.  Rush,  9  Dana,  64; 
Payne  v.  Fox,  18  La.  Ann.  80;  Stod- 
dard V.  Treadwell,  26  Cal.  294;  Keyes 
V.  Western,  etc.  Co.  34  Vt.  81;  Hub- 
bard V.  Fisher,  25  Vt.  539;  Dennis  v. 


Sully  V.  Trean,  10  H.  &  G.  535.  Belt,  30  Cal.  247;  Earl  v.  Beele,  15 

2  The  Aultman    &  Taylor  Co.   v.  Cal.  431;  Edwards  v.  Toda,  2111.  462; 

Hetheriugton,  42  Wis.  633;  Aultman  Kaskaskia  Bridge  Co.  v.  Shannon,  6 

&  Co.  V.  Jett,  43  Wis.  488.  111.  15;  Schubert  v.  Hastean,  34  Barb. 

sBattcrman  v.  Pierce,  3  Hill,  171;  447;  Spears  v.  Sterret,  29  Pa.  St.  192; 

Ward  V.  Fellers,  3  Mich.  381;  Win-  Hayne  v.  Prother,  10  Rich,  318. 

der  V.  CaldweU,  14  How.  U.  S.  434; 


EECOUPMENT    AKD   COUNTERCLAIM:.  293 

must  be  pleaded  according  to  the  same  rules,  and  proved  accord- 
ing to  the  same  rules,  as  when  it  is  made  the  basis  of  an  action ; 
the  damages,  if  of  such  nature  as  to  be  submitted  to  the  con- 
sideration of  a  jury,  in  a  suit  brought  for  their  recovery,  are 
equally  subject  to  determination  by  a  jury  for  the  puq3ose  of 
redress  in  favor  of  a  defendant.  The  policy  of  admitting  this 
defense  to  avoid  circuity  of  action,  obviously  embraces  all  cases 
where  the  rights  of  the  parties  are  of  such  a  character  as  to  be 
susceptible  of  adjustment  in  one  action.  Accordingly,  where 
the  defense  has  the  necessary  connection  with  the  subject  of  the 
plaintiff's  taction,  and  the  rights  of  both  parties  may  be  finally 
and  justly  settled  by  one  adjudication,  it  is  not  essential  that 
the  damages  on  either  side  should  be  liquidated,  nor  of  the  same 
nature ; —  they  may  be  liquidated  on  one  side  and  unhquidated 
on  the  other ;  on  one  side  they  may  be  claimed  strictly  for  ^ao- 
lation  of  contract,  and  on  the  other  for  fraud,^  or  negligence,'^ 
or  other  tort ;  =*  the  damages  may  be  claimed  for  tort  on  both 
sides.* 

4.  Recoupment  is  (mailcible  only  as  a  defense;  for,  except  hy 
statute^  it  can  have  no  further  effect  than  to  answer  the  plaintiff^  s 
damages  in  whole  or  in  part;  the  defendant  cannot  7'ecover  any 
halance  or  excess.^ 

It  is  not  necessary  that  it  be  a  full  defense ;  ®  it  cuts  off  so 
much  of  the  plaintiff's  damages  as  the  cross  claim  comes  to,^ 
and  when  sufficient  in  amount,  may,  of  course,  satisfy  the 
plaintiff's  claim  entirely.  The  verdict  will  then  be  for  the  de- 
fendant. In  this  respect  it  is  different  from  mere  mitigation  of 
damages,  for  damages  can  never  be  mitigated  below  nominal 
damages.  But  however  large  the  damages  assessable  in  respect 
of  the  defendant's  cross  claim  set  up  by  way  of  recoupment,  if 
it  exceed  the  plaintiff's  damages,  only  so  much  is  taken  into  ac- 
count as  is  required  to  annul  the  plaintiff's  demand ;  the  excess 
is  lost.^    This  limitation  has  been  obviated  by  the  defendant 

1  See  ante,  p.  2T7.  v.   Fellows,   3  Mich.   281;  Estell  v. 

-  Ante,  p.  279.  Myers,  54  Miss.  174;  Fowler  v.  Payne, 

3  Ante,  p.  280.  52  Miss.  210. 

■•Carey  v.  Guillow,  105  Mass.  118;  ^Rqss  v.  Longmuir,  15  Abb.  326. 

Estell  V.  Myers,  54  Miss.  174.  Hves  t.  Van  Epps,  22  Wend.  155. 

may  V.  Short,  49  Mo.  139;  Ward  SBronson  v.  Martin,  17  Ark.  270. 


294  LEGAL    LIQUIDATIONS    AND    EEDCCTIONS. 

bringing  a  cross  suit  as  well  as  setting  np  tlie  claim  by  way 
of  recoupment,  and  having  the  actions  consolidated  or  tried 
together.^ 

In  two  cross  actions  tried  together,  one  for  the  price  of  prop- 
erty sold,  and  the  other  for  fraud  in  the  vendor,  the  jury,  if 
they  find  the  fraud,  and  that  the  damages  equalled  or  exceeded 
the  purchase  money,  may  render  a  verdict  for  the  defendant  in 
the  first  action,  and  for  the  plaintiff  in  the  second  action  for  the 
excess,  if  any,  of  such  damages.^  But  in  such  case  a  party  who 
defends  by  recoupment,  and  brings  a  cross  suit,  on  the  trial  of 
both  together,  is  not  entitled  to  have  damages  assessed  in  both 
actions  for  the  same  breach  of  contract,  nor  to  divide  his  claim 
for  damage  as  he  sees  fit  between  the  two.  Both  actions  being- 
tried  together,  however,  his  entire  damages  for  breaches  of  the 
contract,  or  in  respect  of  his  cross  demand,  must  be  assessed, 
and  applied  first  to  cancel  in  whole  or  in  part  the  damages  of 
the  plaintiff  in  the  first  action ;  then  if  there  be  an  excess  it 
should  be  returned  in  a  verdict  for  the  plaintiff  in  the  cross 
action,* 

Yery  generally  in  this  country  this  limitation  has  been  abol- 
ished by  statute,  and  authority  given  to  render  judgment  in 
favor  of  the  defendant  for  any  excess  of  damages  after  satisfy- 
ing the  plaintiff's  demand  against  which  his  cross  claim  is 
preferred. 

But  when  the  plaintiff  sues  as  assignee  of  the  demand,  the 
defendant  having  a  cross  claim  against  the  assignor  can  only 
use  it  for  defense ;  to  that  extent  it  is  available  the  same  as 
though  the  suit  were  in  the  name  of  the  assignor.^ 

5.  A  defendant  has  an  election  to  use  such  cross  demand  as  a 
defense  hy  way  of  recoujpnient^  or  to  hring  a  sejparate  action  upon 
it;  hut  he  will  not  have  an  election  to  set  up  his  claim  hy  way  of 
recoupment^  unless  it  woidd  he  just  and  equitahle,  and  it  is  prac- 
ticable to  adjust  and  allow  it  in  the  plaintiff'' s  action. 

The  omission  to  take  advantage  of  matter  of  recoupment  or 
counterclaim,  as  a  defense,  is  no  bar  to  a  cross  or  separate  action 

iCook  V.    Castner,   9    Gush.    366;  3  star  Glass  Co.  v.  Morey,  supra. 

Star  Glass  Co.  v.  Morey,  108  Mass.  4  gee  ante,  p.  275;  Desha's  Ex'r  v. 

570.  Robinson's  Aclm'r,  17  Ark.  228. 

2  Cook  V.  Castner,  supra. 


EECOTJPMENT   AND   COTINTEKCLArM.  295 

upon  it ;  so  that  though  the  cross  claim  be  admissible  by  way 
of  defense,  the  defendant  has  an  option  to  avail  himself  of 
it  in  that  form,  or  sue  upon  it  in  another  action.^  But  the 
defendant  "will  be  denied  the  right  of  recoupment  when  it 
cannot  be  justly  and  equitably  allowed.  It  is  a  defense  on 
principles  borrowed  from  equity,  and  if  a  superior  equity  in- 
tervene it  will  be  denied;  and  when  any  equitable  barrier 
exists,  and  the  whole  controversy  cannot  be  settled  in  the 
plaintiff's  action,  a  separate  suit  must  be  brought.  On  this 
ground,  in  many  of  the  states,  defenses  of  this  kind,  in  suits 
for  the  purchase  mone}^  of  land,  based  on  breaches  of  cov- 
enants for  title,  will  not  be  allowed  in  actions  at  law.^  The 
owner  of  a  lot  entered  into  a  contract  with  others  for  the  lat- 
ter to  build  a  warehouse  upon  it  for  a  specified'  sum.  The 
contract  also  contained  a  lease  to  this  party  for  thu'teen  years 
from  the  date  fixed  for  its  completion  at  a  stated  yearly  rent. 
After  the  building  had  been  erected,  the  builders  and  lessees  en- 
tered a  mechanic's  lien  for  the  work  and  materials,  and  two 
years  afterwards  the  property  Avas  sold,  and  it  had  to  be  deter- 
mined how  the  f and  should  be  distributed.  The  lessees  had  oc- 
cupied for  two  years  and  no  rent  had  been  paid,  and  dm'ing 
that  time  the  lessor  became  indebted  to  them  in  account  to  an 
amount  nearly  equal  to  the  rent  for  that  period.  The  comt  be- 
low excluded  the  lessee's  account  as  a  set-off  against  the  rent, 
and  set  off  the  rent  against  the  hen  debt,  because  the  hen  and 
rent  were  part  of  one  transaction.  This  decision  was  the  sub- 
ject of  appellate  review.  Thompson,  J.,  said :  "  There  are  un- 
doubtedly cases  in  which  the  transaction  is  so  entirely  a  unit 
that  it  is  most  just  and  proper,  when  htigation  arises,  that  mat- 
ters arising  directly  out  of  it  should  be  determined  in  one  suit. 
These  cases  ai'e  not  parallel  with  this.  Here  the  same  paper,  it 
is  true,  contains  the  contract  out  of  which  the  hen  arises,  as 
Avell  as  that  out  of  which  the  rent  accrued ;  but  they  are  as  dis- 
tinct and  separate  covenants  as  if  written  on  separate  sheets  of 
paper.  There  is  a  complete  contract  for  building,  describing 
the  kind  of  structure,  and  the  time  when  to  be  completed  and 
paid  for.     Then  follows  a  complete  lease  of  the  building  for  a 

1  Earth  v.  Burt,  43  Barb.  628.  2  See  ante,  p.  291. 


296  LEGAi   LIQUIDATIONS   AJSTD   REDUCTIONS. 

long  term ;  to  commence  shortly  before  its  completion,  and  to 
continue  for  thirteen  years.  The  former,  the  building  contract, 
was  to  be  finished  in  about  eight  months,  and  to  be  then  paid 
for.  The  first  year's  rent  would  not  fall  due  for  near  a  year 
after.  These  things  show  the  distinctiveness  of  the  covenants 
as  contracts.  ISTow  the  lien  might  have  been  reduced,  under  the 
principle  invoked,  by  showing  defectiveness  in  the  work  and  the 
like,  and  so  might  the  rent,  if  the  landlord  had  been  suing  for 
it,  on  account  of  interference  with  the  tenant's  possession,  not 
amounting  to  eviction,  but  acts  against  quiet  enjoyment.  These 
would  be  instances  of  claims  arising  in  the  same  transaction 
being  allowed  to  be  given  in  e^^dence  to  extinguish  the  claim 
by  a  literal  construction  of  our  defalcation  act.  ...  It  was 
impossible  to  settle  the  entire  covenants  in  one  action.  They 
were  of  different  and  distinct  natures,  and  to  be  performed 
at  different  and  distinct  periods.  In  applying  the  rent,  there- 
fore, to  the  extinguishment  of  the  lien,  on  this  principle  alone, 
when  the  plaintiffs  had  other  claims  entitled  to  its  apphca- 
tion  on  equitable  principles,  was  of  course  error  in  the  absence 
of  appropriation  by  the  debtor  and  creditor.  They  therefore 
should  have  been  allowed  to  put  in  evidence  their  book  ac- 
count ;  if  it  was  unpaid  and  unsecured,  and  no  appropriation  by 
the  parties  of  the  rent,  equity  would  apply  it  to  the  book  ac- 
count in  preference  to  the  old  debt  secured  by  the  hen.  This  is 
the  well  settled  rule.^ 

In  an  action  on  a  note  against  the  executor  of  an  accommo- . 
dation  indorser,  it  appeared  that  the  note  w^s  made,  indorsed 
and  transferred  to  the  plaintiff  in  payment  of,  or  as  collateral 
security  for  an  antecedent  debt  of  a  firm  of  which  the  maker 
was  a  member ;  that  afterwards  the  firm  made  an  assignment 
to  the  plaintiff  for  the  benefit  of  the  creditors,  preferring  the 
plaintiff  and  the  defendant's  testator.  The  answer  setting  up 
these  facts  alleged  also  that  the  assets  were  more  than  sufficient 
to  pay  in  full  all  the  preferred  creditors.  But  as  these  facts 
could  not  be  established  without  an  accounting,  and  the  plaint- 
iff was  entitled,  when  compelled  to  account,  to  account  entirely, 
which  could  not  occur  in  that  action  for  the  want  of  necessary 

iMcQuaide  v.  Stewart,  48  Pa.  St.  198. 


RECOUPMENT   AND    COUNTERCLAIM. 


297 


parties,  all  evidence  touching  the  counterclaim,  was  properly 
rejected.^ 

6.  When  a  defendant  sets  lop  a  cross  claim  hy  way  of  recoup- 
ment^ he  assumes^  like  a  plaintiff ^  the  hurden  of  proof  in  respect 
to  it  /  and  the  same  rule  or  measure  of  damages  applies  as  would 
he  applicahle  in  a  separate  suit  upon  such  claim  /  subject,  how- 
ever, to  the  Umitation  already  mentioned,  that  there  can  be  no 
recovery  by  a  defendant  for  any  balance  found  in  his  favor  be- 
yond the  damages  established  on  the  part  of  the  plaintiff,  in  the 
absence  of  a  statute  authorizing  it.  The  burden  of  proof  rests 
upon  him,  because  he  asserts  a  claim  or  right,  and  must  there- 
fore produce  the  proof  necessary  to  make  good  his  contention.^ 
That  the  same  rule  of  damages  appUes,  has  been  repeatedly 
ruled ;  '^  and  it  is  universally  assumed  by  actually  applying  it.^ 
But  the  rule  is  the  rule  of  compensatory  damages  —  no  recovery 
on  a  claim  set  up  for  recoupment  can  be  had  for  malice,  or  any 
aggravation,  in  the  form  of  exemplary  damages.^ 


1  Bailey  v.  Bergen,  67  N.  Y.  346. 
See  Duncan  v.  Stanton,  30  Barb. 
533. 

2  1  Whart.  Ev.  §  356. 

3  Goodwin  v.  Morse,  9  Met.  278; 
Myers  v.  Estell,  47  Miss.  4;  Hitch- 
cock V.  Hunt,  28  Conn.  343;  Tim- 
inons  V.  Dunn,  4  Ohio,  680. 

^Blanchard  v.  Ely,  21  Wend.  342; 
Tensley  v.  Tensley,  15  B.  Mon.  454; 
Rogers  V.  Ostram,  35  Barb.  523;  Stod- 
dard V.  Ti-eadwell,  26  Cal.  294; 
Satchwell  v.  AVilliams,  40  Conn.  371 ; 
Cook  V.  Soule,  56  N.  Y.  420;  War- 
field  V.  Booth,  33  Md.  63;  Bradley  v. 
Rea,  14  Allen,  20;  Harrolson  v.  Stein, 
50  Ala.  347;  Haven  v.  Wakefield, 
39  111.  509;  Bounce  v.  Dow,  57  N.  Y. 
16;  The  Aultman  &  Tajior  Co.  v. 
Hetherington,  42  Wis.  622;  Van  Epps 
V.  Harrison,  5  Hill,  G3;  Overton  v. 
Phelan,  2  Head,  445;  Timmons  v. 
Dunn,  4  Ohio,  680;  Ronlan  v.  Nich- 
ols, 22  Ark.  244;  Harris  v  Rathbun, 
41  N.  Y.  (2  Keyes)  312;  Railroad  Co. 
v.  Smith,  21  WaU.  255. 

5  Allaire  Works  v.  Guion,  10  Barb. 


55.  This  case  has  sometimes  been 
cited  as  holding  that  siiecial  damages 
are  not  the  subject  of  recoupment 
(Benkard  v.  Babcock,  2  Robt.  175); 
and  Dorwin  v.  Potter,  5  Denio,  306, 
has  also  been  cited  as  holding  the 
same.  Neither  case  advances  any 
such  doctrine.  In  the  latter  case,  a 
landlord's  action  for  rent  was  de- 
fended by  way  of  recoupment  for 
his  neglect  to  put  the  barns  on  the 
demised  premises  in  that  state  of 
repair  required  by  his  agreement. 
The  court  say,  Whittlesey,  J. :  "  The 
material  question  here  is  as  to  the 
proper  rule  of  damages  for  such 
neglect  to  repair.  We  do  not  know 
what  the  referees  adopted,  but  the 
questions  put  to  the  witnesses  after 
objection,  woidd  only  be  admissible 
upon  the  ground  that  the  defendant 
was  entitled  to  all  the  damages 
which  he  might  have  sustained  by 
the  injuries  to  the  cows  and  young 
cattle,  the  increase  of  food  required, 
and  the  decrease  of  produce  by  rea- 
son of  the  state  of  the  barns  in  ques- 


298  LEGAL   LIQTJIDATIONS   AND   KEDUCTIONS. 

The  consideration  that  this  defense  is  to  avoid  circuity  of  ac- 
tion, and  when  resorted  to  is  a  substitute,  renders  it  desu^able, 
and  necessary  to  its  usefulness,  that  the  defendant,  to  the  extent 
of  full  defense,  should  have  the  benefit  of  the  rule  of  damages 
to  which  he  would  be  entitled  if  he  elected  to  bring  a  separate 
action. 

7.  When  a  cross  clcmn  is  suhnitted  as  a  defense  ly  way  of  re- 
cou2?nient,  the  judgment  will  he  a  lav  to  another  action  or  recouj^- 
inent. 

A  defendant  has  an  election  to  avail  himself  of  a  cross  claim 
by  way  of  recoupment,  or  under  the  code  as  a  counterclaim,  or 
to  bring  an  action  upon  it.  This  choice,  however,  is  only  final 
when  submitted  for  adjudication,  and  is  so  to  prevent  a  second 
recovery.  ISTeither  pleading  it  in  defense,  or  bringing  an  action 
upon  it,  wiU  determine  the  election.  ^  Where  it  appeared  in  an 
action  in  which  a  cross  claim  was  set  up  by  way  of  recoupment, 
that  the  defendant  had  previously  brought  an  action  for  the 
same  damages,  and  that  that  action  was  still  pending,  and  the 
trial  court  had  rejected  the  defense,  the  appellate  court  said : 
"  The  court  [below]  seemed  to  have  regarded  the  pendency  of 
the  other  action  as  a  sort  of  abatement  of  the  defendants'  plea, 
or  to  have  deemed  the  bringing  of  the  suit  (by  the  defend- 
ants) ,  .  .  as  a  conclusive  election  to  prosecute  a  cross 
action,  and  not  to  recoup  or  use  the  claim  as  a  defense  under  any 
circumstances  while  that  action  should  continue.  There  is  in 
this  holding  a  misapprehension  of  the  defendants'  position. 
They  are  not  prosecuting  two  actions,  one  of  which  abates  the 
other.  In  an  endeavor  to  recover  then'  damages,  they  find 
themselves  prosecuted  by  their  adversary.  They  may  defend 
by  setting  up  any  matter  which  the  law  recognizes  as  a  defense, 

tion.  It  strikes  me  that  such  dam-  tract  was  set  up  by  way  of  recoup- 
ages  are  altogether  too  remote  and  meut;  but  it  is  laid  down  as  "the 
contingent,  and  that  the  true  rule  of  proper  rule  of  damages  for  such 
damages  is  the  sum  necessary  to  neglect  to  repair;"  and  on  that  sub- 
place  the  barns  in  that  state  of  re-  ject  see  Myers  v.  Burns,  35  N  Y. 
pair  in  which  they  were  to  be  put  ac-  269;  Hexter  v.  Knox,  63  N.  Y.  561. 
cording  to  the  agreement,  with  inter-  i  Donald  v.  Christie,  42  Barb.  36; 
est  thereon,  if  tlie  referees  thought  Fabbricotti  v.  Launitz,  3  Sandf.  743; 
proper  to  allow  interest."  There  is  Rankin  v.  Barnes,  5  Bush,  20;  see 
no  hint  tliat  this  rule  was  adopted  Cook  v.  Castner,  9  Cush.  266;  Miller 
because  the  plaintiff's  breach  of  con-  v.  Freeborn,  4  Robt.  608. 


EECOUPMENT   AND    COUNTERCLAIM. 


290 


whether  it  be  a  cause  of  action,  or  whether  it  be  a  judgment 
actually  recovered  therein  —  the  only  difference  being  that 
after  judgment  it  must  be  used  as  a  judgment  and  by  way  of 
set-off.  The  election  made  by  the  defendants  was  not  an  elec- 
tion not  to  recoup.  At  that  time  it  was  an  election  between 
prosecuting  to  establish  their  claim,  or  suffering  the  injury  with- 
out seeldng  any  redress.  And  when  the  plaintiff  forced  them 
into  court,  .  .  .  their  opportunity  to  use  their  claun  by  way 
of  defense  first  arose,  and  they  had  a  right  to  embrace  it.  Un- 
til judgment  in  one  of  the  suits,  the  right  to  press  the  claim  in 
the  other  continued,"  ^  But  after  a  judgment  in  a  separate 
action  upon  the  claim,  it  is  merged  in  the  judgment;  or,  if 
rejected,  barred;  if  the  issue  embraces  it,  the  judgment  is 
conclusive.- 


1  Naylor  v.  Schenck,  5  E.  D.  Smith, 
135. 

2  Davis  T.  Tallcot,  13  N.  Y.  184; 
Kane  v.  Fisher,  2  Watts,  246;  Grant 
V.  Button,  14  John,  377;  O'Connor 
V.  Varney,  10  Gray,  231;  Burnett  v. 
Smith,  4  Gray,  50;  Tlie  Salem  India 
R.  Co.  V.  Adams,  23  Pick.  256;  Ste- 
vens V.  MUler,  13  Gray,  283;  Huff  v. 
Broyles,  26  Gratt.  283;  Beall  v. 
Pearre,  Adm'r,  12  Md.  550;  McLane 
V.  Miller,  10  Ala.  856;  Britten  v. 
Turner,  6  N,  H.  481,  495.  In  Davis 
V.  Tallcot,  supra,  it  was  held  that  a 
recovery  in  a  suit  upon  an  agree- 
ment, wlierein  the  right  to  recover 
depended  by  tlie  pleadings  upon  the 
truth  of  the  allegation  made  in  the 
complaint  and  denied  by  the  answer, 
that  the  plaintiff  had  fully  per- 
formed the  agreement,  is  a  bar  to  an 
action  brought  subsequently  by  the 
defendant  in  the  first  suit  against 
the  plaintiff  therein  to  recover  dam- 
ages for  the  alleged  non-performance 
of  the  same  agreement.  The  record 
of  the  recovery  estops  the  defendant 
from  controverting  that  the  plaintiff 
therein  fully  performed  the  con- 
tract. The  rule  is  not  otherwise,  al- 
though in  the  first  suit  the  defend- 


ant, in  addition  to  the  allegation  of 
performance,  alleged  breaches  by 
the  plaintiff,  and  claimed  to  recoup 
damages,  and  at  the  trial  expressl}-- 
withdrew  the  claim  for  damages, 
gave  no  evidence  toucliing  the  al- 
leged breaches,  and  the  second  suit 
was  to  recover  damages  for  such 
bi'eaches. 

Gardiner,  C.  J.,  said:  "  The  defend- 
ants in  tliat  (the  former)  action,  the 
present  plaintiffs,  insisted  upon  the 
non-performance  of  the  agreement 
upon  the  part  of  TaUcot  and  Can- 
field,  the  manufacturers  of  the  ma- 
chinery, for  two  purposes  entirelj' 
distinct  in  their  nature  and  objects. 
First,  as  a  complete  defense  to  the 
action,  by  a  denial  of  that  which 
the  makers  of  the  machinery  had 
averred  and  must  prove  before  they 
could  recover  anything.  Second,  as 
a  foundation  for  a  claim  in  the 
nature  of  a  cross  action  for  dam- 
ages to  be  deducted  from  the 
amount  which  the  then  plaintiff 
might  otherwise  recover. 

"It  is  obvious  that,  by  ■withdraw- 
ing tlieir  claim  to  damages,  the  then 
defendants  did  not  waive  the  right 
to  insist  upon  then*  defense.     The 


800 


LEGAL   LIQUIDATIONS   AND   KEDUCTIONS. 


In  an  action  for  breach  of  warranty  in  the  sale  of  personal 
property,  these  facts  appeared :  A  note  had  been  given  for  the 
purchase  money,  and  had  been  collected  by  suit ;  to  that  the 
now  plaintiff  had  pleaded  non-assumpsit,  and  it  was  agreed 
that  under  that  plea  he  might  offer  the  special  matter  in  evi- 
dence as  fully  as  if  he  had  specially  pleaded  the  same  or  given 
notice  thereof;  the  breach  of  warranty  now  sued  for,  the  then 
defendant  offered  to  prove  as  a  defense,  but  it  was  rejected  by 
the  court,  because  it  did  not  tend  to  show  a  total  failure  of 
consideration.     On  these  facts  the  judgment  in  the  former  ac- 


plaintiffs,     notwithstanding,     must 
have  estabUshed  their  title  to  the 
price  stipulated,  by  proof  that  the 
machinery    was    made  within    tlie 
time  and  in  the  manner  called  for 
by  the  agreement;  and  the  vendees 
were  at  liberty  to  meet  and  combat 
these  proofs  by  counter  evidence  on 
their  part.     Now,  tliis  was  precisely 
what  was  done,  or  rather  the  neces- 
sity for  introducing  evidence  to  sus- 
tain the  action  was  superseded  by 
the  admission  of  the  then  defendants 
in   open    court,    'that    they   were 
indebted  to  tlie  manufacturers  for 
the  causes  of  action  mentioned  in 
tlieit  complaint.'    As  the  cause   of 
action  and  the  indebtedness  of  the 
defendants  were,  by  the  complaint, 
made      dependent      upon     a      full 
performance  of  the  contract  by  the 
parties  who  instituted  the  suit,  the 
concession  of    the  defendants  was 
equivalent  to  an  admission  on  the 
record  to  that  effect;  and  the  report 
of    the    referee,    followed    by    the 
judgment  of  the  court,  consequently 
estops  the  parties  to  that  suit  from 
ever  after  questioning  that  fact  in 
any    controversy    upon    the     same 
agreement  (2  Cow.  &  H.  N.  843;  10 
Wend.   80;  3  Comst.    173).     In  the 
suit    now    pending,    however,    the 
vendees  bring  their  suit  upon  the 
same  contract  against    the    manu- 
facturers, and  aver  a  non-perform- 


ance by  the  defendants  as  the  sole 
cause    of    action.     They  have  suc- 
ceeded in  the  court  below,  notwith- 
standing the  objection  we  have  con- 
sidered; and  there  are,  consequently, 
two  records  in  the  same  court  be- 
tween the  same  parties,  each  import- 
ing absolute  verity,  one  of  which 
affirms     that     the     manufacturers 
'  faithfully    performed    said    agree- 
ment in  every  respect  on  or  before 
the  7th  of  June,  1850;  the  other,  tliat 
they    did  not    perform    it    in    any 
respect,    at    any    time.'    This   flat 
contradiction    is    attempted    to    be 
reconciled  by  the  assertion,  that  the 
record  in  the  first  suit  only  shows 
that  this  point  might  have  been,  not 
that  it  was,  litigated.     The  answer 
is,    that    the    record    in    that    case 
proves  that  the  question  of  perform- 
ance was  directly  in  issue,  and  must 
have  been  litigated;  that  a  recovery, 
without  establishing  the  fact  of  per- 
formance, was  a  legal  impossibility. 
Again,  the  parol  evidence,  if  admis- 
sible, only  j)roves  that  the  vendees 
did  not  rely  upon  a  breach  of  the 
contract    upon    the     part     of     the 
makers  of  the  machinery  to  support 
their  claim  to  recoup.     This  is  the 
course  they   w^ould  naturally  adopt 
if  their  damages,  in  their  opinion, 
exceeded  the  sum  to  be  paid  for  the 
machinery.     Their  only  remedy  for 
the  excess  would  depend  upon  de- 


RECOUPMENT   AOT)   COIINTERCLAIM.  301 

tion  was  held  to  be  a  bar.^  The  defense  being  admissible  in 
the  former  action  and  erroneously  rejected,  the  judgment  had 
the  same  effect  as  though  the  claim  had  been  admitted.  The 
error  of  its  rejection  should  have  been  corrected  by  proceed- 
IniTS  taken  in  that  case :  therefore  the  exclusion  of  the  defense 
by  the  court  had  the  same  effect  as  a  disalloAvance  by  a  jury.^ 

Where  notwithstanding  the  cross  claim  is  pleaded,  the  judg- 
ment is  afterwards  taken  by  default  by  the  plaintiff,  and  so  ap- 
pears by  the  record,  the  cross  claim  is  not  barred.'  The  fact 
that  the  judgment  was  upon  default  makes  it  as  certain  that 
the  counterclaim  was  not  passed  upon  by  an  actual  adjudica- 
tion as  though  the  plea  had  been  formally  withdrawn. 

Notice  of  this  defense  is  required.  This  defense  being  a  sub- 
stitute for  an  action  and  to  avoid  the  necessity  of  another  suit, 
some  pleading  has  to  be  adopted  by  which  the  defendant 
evinces  his  election  to  insist  on  his  cross  claim  as  a  defense,  con- 
taining the  necessary  allegations,  and  to  apprise  the  plaintiff  so 
that  he  may  not  be  taken  by  surprise.  And  it  must  be  set  up 
in  the  answer  under  the  code.^  The  defendant  is  as  much  con- 
cluded by  the  amount  of  damages  he  claims  in  his  counterclaim 
as  the  plaintiff  in  his  complaint. 


5 


f eating  the  action  then  pending,  and  subsequent    action."    See    Merriam 

subsequently  suing    on  the    agree-  v.  Woodcock,  104  Mass.  336. 

ment.     That  this  was  really  the  ob-  i  Beall  v.  Pearre,  12  Md.  550. 

ject  of  their  legal  adviser,   is  evi-  2Qrant  v.   Button,  14  John.    377; 

denced  by  the  fact  that  while  the  Smith  v.  Whiting,  11  Mass.  445. 

manufacturers    recovered    in    their  3  Bascom  v.  Manning,  52  N.  H.  132; 

suit  less  than  six  hundred  and  fifty  Bodurtha  v.  Phelon,  13  Gray,  413. 

dollars,  the  present  plaintiffs   have  ^  Trowbridge    v.     Mayor,    etc.    7 

obtained  judgment  in  the  case  un-  Hill,     429;    Burton  v,     Stewart,     3 

der  review  for  upwards  of  nine  hun-  Wend.  326;  Barber  v.  Eose,  5  Hill,  76; 

dred    dollars.     The    withdrawal    of  Crane  v.  Hardman,  4  E.  D.  Smith, 

their  claim  to  recoup  was  therefore  448;  Lamson  &  Goodnow  M.  Co.  v. 

not  only  consistent  with  the  deter-  Russell,  112  Mass.    387;  Lansing  v. 

mination  to  insist    upon  a  breach  Van  Alstyne,   2  Wend.  561;  Steam- 

of  the  conti-act  on  the  part  of  the  boat  WeUsville  v.  Geisse,  3  Ohio,  333; 

manufacturers,   in  order   to  defeat  Young  v.  Plumson,  Harp.  349;  Mav- 

the  suit  then  pending,  but  this  was  erick  v.  Gibbs,  3  McCord,  315;  Mc- 

indispensable  to  the  ultimate  recov-  Clure  v.  Hart,  19  Ark.  119;  Hill  v. 

ery    of    their    full    damages    in    a  Austin,  19  Ark.  230. 

5  Annis  v.  Upton,  66  Barb.  370 


302  LEGAL   LIQUIDATIONS    AND   EEDUCTIONS. 


Section  5. 
marshaling  and  distkibution. 

Definitions  —  Wliere  incimibered  property  is  sold  in  parcels  to  different  per- 
sons at  different  dates —  When  sold  subject  to  incumbrance  —  Effect  of 
creditor  releasing  part  —  Rights  where  one  creditor  may  resort  to  two 
funds,  and  another  creditor  to  only  one  of  them  —  Same  ivhen  the 
funds  belong  to  two  separate  debtors — Principle  on  which  priority 
determined  between  creditors. 

Definitions. —  Marshaling  is  the  sotting  of  debts  or  assets  in 
a  certain  order;  distribution  the  application  of  funds  to  the 
payment  of  debts  marshaled.  There  are  therefore  two  kinds 
of  marshaling,  one  of  assets  and  the  other  of  debts ;  it  is  re- 
sorted to  whenever  it  becomes  necessary  practically  to  answer 
either  the  question  in  what  order  certain  distinct  funds  or  prop- 
erties shall  bear  the  burden  of  paying  or  contributing  to  pay  a 
debt  which  is  directl}^  or  indirectly  a  charge  upon  all ;  or,  sec- 
ondly, when  there  are  several  debts,  directly  or  indirectly, 
charged  upon  one  fund  or  property  which  is  insufficient  to  pay 
them  in  full,  to  determine  in  what  order  such  fund  shall  be  ap- 
plied as  far  as  it  will  go.  In  answering  the  first,  the  court  set- 
tles the  order  of  liability  among  the  funds  that  must  pay;  the 
second,  the  priorities  of  the  claims  to  be  paid.  Under  the 
first  inquiry,  two  classes  of  persons  are  liable  to  be  affected ; 
first,  those  having  proprietary  interests  in  the  fund  or  property 
marshaled ;  and  second,  creditors  having  liens  thereon. 

"Where  incumbered  property  is  sold  in  parcels  to  different 
PERSONS  AT  DIFFERENT  DATES. —  For  tlic  protcction  of  purchascrs 
this  rule  obtains :  if  the  creditor's  hen  be  upon  several  parcels  of 
land  for  the  payment  of  the  same  debt,  and  some  of  these  lands 
belong  to  the  person  who  in  equity  and  justice  owes  or  ought  to 
pay  the  debt,  and  other  parcels  of  the  land  have  been  transferred 
by  him  to  third  persons,  his  part  of  the  land,  as  between  himself 
and  them,  shall  be  primarily  chargeable  with  the  debt.^    And  if 

13  story's  Eq.  §  1233;  Clowes  v.  Barnes' App.  46  Pa.  St.  850;  Ammer- 

Dickinson,  5  Jolm.   Ch.  235;  S.  C.  9  man  v.  Jennings,  12  B.   Men.   135. 

Cow.  403;  Cowden's  Est.  1  Pa.    St.  In  Clowes  t.  Dickinson,  9  Cow.  403, 

267,  274;  Mason  v.  Payne,  Walk.  Ch.  it  was  held  that  if  the  creditor,  or 

459;  Cooper  v.   Bigly,  13  Mich.  463;  any  other  person  having  control  of 


MAESUALIXG   AXD   DISTEIBUTION. 


30J 


there  liave  been  successive  alienations  by  him,  of  parts  of  the  in- 
cumbered property,  and  the  portion  retained  by  liim  is  insufficient 
to  discharge  the  entire  incumbrance,  the  parcels  transferred  will 
be  subject  to  sale  in  the  inverse  order  of  ahenation.^ 


his  judgment,  cause  a  sale  of  the 
aliened  part  before  resorting  to  tiiat 
retained  by  the  judgment  debtor, 
the  latter  part  being  sufficient  to  pay 
his  debt,  though  no  order  or  decree 
be  obtained  directing  the  remaining 
portion  to  be  first  sold,  such  creditor 
will  be  required  to  restore  the  real 
estate  so  sold;  or,  if  sold  to  a  bona 
fide  purchaser,  to  account  to  the 
alienee  for  the  value  of  the  real  estate 
so  sold,  if  the  other  part  would  have 
satisfied  the  judgment;  or,  if  not,  to 
restore  or  account  for  the  value  be- 
yond what  would,  with  the  other, 
have  satisfied  the  judgment.  That 
such  ahenee,  having  stood  by  and 
allowed  the  legal  estate  to  pass  from 
him,  shall  not  be  allowed  tiie  land 
itself,  with  improvements  made 
subsequent  to  the  execution  sale, 
and  before  he  asserted  his  claim. 
The  true  value  of  the  aliened  estate 
in  market  at  the  time  of  the  execu- 
tion sale,  not  the  price  bid  for  it, 
is  the  measure  of  compensation. 

lid.;  Gill  V.  Lyon,  1  John.  Ch.  447 
Stevens  v.  Cooper,  1  John.  Ch.  425 
James  v.  Hubbard,  1  Paige,  228 
Goviveneur  v.  Linch,  2  Paige,  300 
Guion  V.  Knapp,  6  Paige,  35;  Skiel 
V.  Spraker,  8  Paige,  182;  Patty  v. 
Pease,  8  Paige,  277;  Scliryser  v. 
TeUer,  9  Paige,  173;  The  N.  Y.  Life, 
etc.  Co.  V.  Cutler,  3  Sandf.  Ch.  116; 
Commercial  Bank  v.  Western  Re- 
serve Bank,  11  Ohio,  444;  Green  v. 
Ramage,  18  Ohio,  428;  Stuyvesantv. 
Hone,  1  Sandf.  Ch.  419;  Stuyvesant 
V.  Hall,  2  Barb.  Ch.  151;  Averall  v. 
Wade,  1  Lloyd  &  Gould  R.  252;  Ly- 
man V.  Lyman,  32  Vt.  79;  Hurd  v. 
Eaton,  28  111.  122;  Carter  v.  Neal,  24 
Ga.  34G;  Root  v.  Collins,  34  Vt.  173; 


Brown  v.  Simons,  44  N.  H.  475;  Jen- 
kins V.  Freyer,  4  Paige,  53;  Howard 
V.  Halsey,  4  Sandf.  565;  La  Farge  Ins. 
Co.  V.  Bell,  22  Barb.  54;  Gates  v. 
Adams,  24  Vt.  71;  Chase  v.  Wood- 
bury, 6  Cush.  143;  Black  v.  Morse,  3 
HaLst.  Ch.  509;  Shannon  v.  Mar- 
seUs,  1  Sax.  Ch.  413;  Henkler  v.  Al- 
stadst,  4  Gratt.  284;  Jones  v.  My- 
rick,  8  Gratt.  179;  Britton  v.  Opdike, 

2  Green's  Ch.  125;  Wickoff  v.  Davis, 

3  Green's  Ch.  224. 

Judge  Story  (2  Story's  Eq.  §  1233&) 
doubts  whether  this  last  position 
is  maintainable  upon  principle;  for 
as  between  the  subsequent  pur- 
chasers or  incumbrancers,  each 
trusting  to  his  own  security  upon  the 
separate  estates  mortgaged  to  him, 
it  is  difficult  to  perceive,  that  either 
has,  in  consequence  thereof,  any  su- 
periority of  right  or  equity  over  the 
other.  On  the  contrary,  there  seems 
strong  ground  to  contend,  that  the 
original  incumbrance  or  hen  ought 
to  be  borne  ratably  between  them, 
according  to  the  relative  value  of 
the  estates.  And  so  the  doctrine  has 
been  asserted  in  the  ancient  as  well 
as  modern  English  cases  on  the  sub- 
ject. Herbert's  case,  3  Co.  12;  Barnes 
V.  Racster,  1  Y.  &  C.  New  Rep.  401; 
Lanoy  v.  Duchess  of  Athol,  2  Atk. 
448;  Aldrich  v.  Cooper,  8  Ves.  391; 
AveraU  v.  Wade,  1  Lloyd  &  Gould, 
252;  Bugden  v.  Bignold,  2  H.  C. 
New.  R.  377;  Green  v.  Ramage,  18 
Ohio,  428;  and  the  law  is  so  settled 
in  Kentucky.  Deckey  v.  Thompson, 
8  B.  Mon.  312;  Morrison  v.  Beck- 
with,  4  T.  B.  Mon.  76;  Hughes  v. 
Graves,  1  Litt.  319;  Burk  v.  Chris^ 
man,  3  B.  Mon.  50. 


304:  LEGAL   LIQUIDATIOInS    AND   EEDUCTIONS. 

Sale  subject  to  the  incumbrance, —  If  a  portion  of  the  land 
covered  by  a  mortgage  is  conveyed  subject  to  the  payment  of 
the  entire  mortgage  by  the  grantee,  the  subsequent  purchaser 
of  another  parcel,^  or  the  mortgagor,^  has  a  right  to  insist  that 
the  parcel  so  conveyed  shall  be  first  sold  to  satisfy  the  mort- 
gage. The  lot  so  sold  becomes  as  to  the  parties  to  the  convey- 
ance the  primary  fund  for  the  payment  of  the  mortgage,^  and 
the  grantee  thereby  becomes  the  party  who  in  justice  ought  to 
pay  the  debt.  The  mortgagor  becomes  then  a  quasi  surety, 
and  has,  himself,  the  right  to  insist  upon  the  collection  of  the 
debt  first,  out  of  the  land,^ 

The  rule  being  intended  for  the  benefit  of  parties  having  sep- 
arate interests  in  the  property  or  fund  on  which  the  debt  is  a  lien, 
their  relation  between  themselves  is  considered  in  determining 
whether  the  burden  rests  upon  them  equally,  or  if  unequally,  in 
what  order  their  several  properties  may  be  resorted  to  for  pay- 
ment. Where  there  are  several  heirs,  or  where  several  persons 
join  in  a  recognizance,  one  heir,  or  one  conusor,  should  not  be 
charged  exclusively ;  for  their  relations  and  duties  are  equal.^  And 
the  same  principle  would  apply  between  several  purchasers  of 
the  same  date.  But  the  property  of  the  party  who  is  in  equity 
bound  to  pay  the  debt,  as  between  him  and  the  owner  of  other 
property  bound  for  the  same  debt,  is  the  primary  fund ;  and  the 
court  will  estabhsh  the  order,  between  any  number  of  persons 
whose  property  is  subject  to  the  debt,  in  which  resort  may  be 
had  to  properties  so  separated  in  ownership.  Thus,  in  an  ac- 
tion of  foreclosure  against  G  and  L  as  mortgagors,  where  it 
appears  that  G  is  possessed  of  a  portion  of  the  premises  in  his 
own  right,  and  L  of  another  portion,  and  that  a  thhd  portion 
is  held  jointly;  and  it  also  appears  that  L  personally  owes  the 
mortgage  debt,  or  is  equitably  bound  to  pay  it,  the  judgment 
should  be  so  entered  that  the  interest  of  L  be  first  sold ;  secondly, 
the  joint  interest ;  and  lastly,  the  interest  of  G,^ 

1  Canithers  v.  Hall,  10  Mich.  40.  5  Harvey    v.    Woodhouse,    Select 

2Mayson  v.  Payne,  Walker's  Cli.  Cas.  in  Ch.  3,  4;  see  Clowes  v,  Dick- 

461.  inson,  5  John.  Ch.  235,  241, 

3 Cox    V,  "Wheeler,   7  Paige,    248;  eogden    v,    Glidden,   9    Wis.   46; 

Jumel  V.  Jumel,  7  Paige,  591.  Warren    v.    Boynton,    2    Barb,    13; 

4  Harris  v,  Jex,  66  Barb.  232.  Cornell  v,  Prescott,  2  Barb.  16, 


MARSHALING   AXD   DISTEIBUTION.  305 

But  these  equities  between  co-debtors,  by  which  one  part  of 
mortgaged  premises  becomes  the  primary  fund  for  the  payment 
of  the  mortgage,  may  be  defeated  by  the  hona  fide  purchaser  of 
that  part,  having  no  notice  of  the  facts  which  raise  these 
equities.  Where  A  and  B  owning  hinds  in  severalty  joined  in 
mortgaging  them  to  secure  the  payment  of  a  joint  debt,  and  A 
afterwards  executed  a  bond  of  indemnity  to  B,  agreeing  to  pay 
the  whole  mortgage  debt,  but  afterwards  executed  on  his  lands 
other  mortgages  to  other  parties  for  a  valuable  consideration, 
Avho  had  no  notice  of  the  bond  or  agreement  between  him 
and  B,  it  was  held  on  the  foreclosure  of  the  mortgage  that  B 
could  not,  as  against  the  subsequent  mortgagees,  compel  the  col- 
lection of  the  whole  of  it  from  the  land  of  A,  to  their  preju- 
dice, and  that  half  of  it  was  collectible  from  B's  land.^ 

Effect  of  cEEDrroE  releasing  part. —  A  creditor  having 
notice  of  such  equities  between  several  parties  owning  property 
suliject  to  his  debt,  cannot  defeat  them  by  releasing  the  property 
first  liable.  A  release  by  the  mortgagee  of  a  portion  of  the. 
land  mortgaged,  with  a  knowledge  of  a  prior  sale  of  another  por-. 
tion,  Avill  operate  as  to  such  prior  purchaser  as  a  discharge,  pro. 
tanto,  of  the  mortgage  debt.^  But  a  release  "without  such^ 
knowledge  will  not  be  a  discharge.^ 

Rights  where  one  creditor  isiay  resort  to  two  funds,  ani> 
ANOTHER  CREDITOR  TO  ONLY  ONE  OF  THEJL —  A  rule  fop  the  pro- 
tection of  creditors  having  junior  liens  exists.  If  one  creditor 
can  resort  to  two  funds,  and  another  to  but  one  of  those  funds, 
the  former  will  be  compelled  to  seek  satisfaction  out  of  the  fund 
which  the  other  cannot  reach,  if  adequate,^  and  it  can  be  done 

iHoyt  V.  Doughty,  4  Sandf.  463;  v.  Shepherd,  13  HI.  41;  Marshall  v. 

Root  V.  Collins,  34  Vt.  173.  Moore,  36  HI.  32T;  Hurd  v.  Eaton,  28 

2 Brown  v.  Simons,  44  N.  H.  475;  111.  122;  Evertson  v.  Booth,  19  John. 

Gion  V.  Knapp,  6  Paige,  43;  Patty  492;  Hays  v.  Ward,  4  John.  Ch.  132; 

V.  Pease,  8  Paige,   285;  Ins.  Co.   v.  Dodds  v.  Snyder,  44  lU.  53;  Goss  v. 

Bell,  33  Barb.  54;  Taylor  v.  Morris,  Lester,  1  Wis.  43;  Worth  v.  Hill,  14 

5  Rawle,  51;  see  Cooper  v.  Bigley,  Wis.  559;  Ogden  v.  Gledden,  9  Wis. 

13  Mich.  4G3:  James  v.  Brown,   11  40;  Lloyd  v.  Galbraith,  33  Pa.   St. 

Mich.  25;  The  Howard  Ins.  Co.  v.  103;  Nailor  v.  Stanley,   10  S.  &  R. 

Halsey,  4  Sandf.  565.  450;   Cowden's  Est.    1   Pa.  St.    267; 

•*  Id.  Bank  of  Ky.  v.  Vance's  Adm.  4  Litt. 

i  Glass  V.  PuUen,  6  Bush,  346;  Wise  169. 
Vol.  1  —  20 


306 


LEGAL   LIQUIDATIONS    AND   EEDUCTIONS. 


without  prejudice  to  sucli  double  fund  creditor.^  Tlie  rule  is 
founded  in  social  duty,  and  is  never  enforced  to  the  prejudice  of 
such  creditor;^  nor  where  it  will  work  injustice  toother  parties. 


1  Logan  V.  Anderson,  18  B.  Mon. 
114;  Jervis  v.  Smith,  7  Abb.  N.  S. 
217;  Wise  v.  Shepherd,  13  111.  41. 

2  Id.  In  Worth  v.  Hill,  14  Wis. 
559,  the  mortgage  being  foreclosed 
covered  two  different  tracts  in  dif- 
ferent towns.  The  defendant  Buck, 
who  is  the  appellant,  held  a  mort- 
gage necst  to  this  in  point  of  time, 
covering  one  of  the  tracts  contained 
in  this  mortgage,  and  other  land  not 
covered  by  this,  in  the  same  town. 
Defendant  Mowry  held  a  mortgage 
next  to  Buck's  in  point  of  time,  but 
upon  the  land  in  the  other  town 
covered  by  the  mortgage,  and  also 
upon  another  tract.  Hence  the 
Mowry  mortgage  did  not  cover  any 
of  the  land  mortgaged  to  Buck,  but 
their  interests  conflicted  by  reason 
of  the  mortgage  which  was  being 
foreclosed,  and  which  was  prior  to 
both,  covering  a  part  of  the  land 
contained  in  each  of  them.  It  fur- 
ther appeared  that  there  was  a  mort- 
gage prior  to  aU  of  these,  covering 
the  tract  in  the  Buck  mortgage,  and 
the  parcel  in  the  Mowry  mortgage 
■which  was  not  contained  in  the 
mortgage  being  foreclosed;  that  that 
mortgage  had  been  foreclosed,  and 
that  part  which  was  covered  by  the 
Mowry  mortgage  adjudged  to  be 
sold  before  the  part  covered  by 
Buck's,  It  was  further  proved  that 
the  other  tract  covered  by  Buck's 
mortgage  was  ample  security  for 
the  amount  of  the  debt  secured  by 
that  mortgage.  Upon  this  state  of 
facts,  it  had  been  decreed  below  that 
the  portion  covered  by  Buck's  mort- 
gage should  be  sold  in  this  fore- 
closure before  that  covered  by 
Mowry's,  and  from  that  part  of  the 
decree  Buck  appealed. 


Referring  to  the  equitable  rule 
that  in  foreclosure  cases  where  the 
land  has  been  subsequently  conveyed 
by  the  mortgagor,  it  shall  be  sold  in 
the  inverse  order  of  alienation, 
Paine,  J.,  says:  "  The  justice  of  this 
rule  has  been  sometimes  questioned, 
but  we  regard  it  as  not  only  well 
settled,  but  correct  upon  principle, 
and  have  repeatedly  enforced  it. 
But  at  the  same  time  we  think  it 
may  be  controlled  by  other  estab- 
lished equitable  principles,  where 
the  facts  render  them  applicable; 
and  such  we  think  was  the  case 
here.  It  is  a  familiar  principle, 
that  where  one  creditor  has  security 
upon  two  funds,  and  another  has  se- 
curity upon  one  of  them  only,  the 
latter  may  compel  the  former  to  re- 
sort first  to  that  fund  which  he 
cannot  reach.  And  although  this  is 
not  a  direct  proceeding  to  accom- 
plish that  object,  yet  it  is  substan- 
tially that,  inasmuch  as  Mowry  sets 
up  these  facts  to  rebut  the  equitj' 
Buck  would  otherwise  have  as 
against  him.  For  the  result,  if  the 
judgment  had  been  otherwise,  would 
have  deprived  Mowry  of  his  security 
entirely.  The  one  tract  covered  bj' 
his  mortgage  having  already  been 
adjudged  to  be  sold  first  for  Buck's 
benefit,  now  if  the  other  should  be 
adjudged  to  be  sold  first,  he  would 
have  nothing  left.  Whereas  it  ap- 
pears by  the  testimony,  that  upon 
the  decree  as  rendered,  Mowry  is 
protected,  and  Buck  left  with  ample 
security  for  his  debt, 

"  Suppose  A  mortgages  a  tract  to 
B,  then  gives  a  second  mortgage  on 
a  part  of  it  to  C,  which  mortgage 
also  covers  other  tracts,  and  then 
gives  a  mortgage  on  another  part  to 


MAESHALING   AKD   DISTEEBUTIOlSr. 


30' 


Thus  wliere  a  fii-m  creditor  has  security  on  the  separate  property 
of  a  member  of  the  finn,  such  creditor  is  not  for  that  reason  to 
be  excluded  from  sharing  in  the  proceeds  of  the  company  as- 
sets until  he  has  exhausted  his  security,  for  that  would  be  a 
detriment  to  such  creditor  where  it  involved  delay,  and  unjust 
to  the  creditor  of  the  separate  estate  which  furnished  the  secu- 
rity.^   "Where  the  rule  would  be  applied  in  favor  of  a  creditor 


D?  On  a  foreclosure  of  B's  mort- 
gage, the  ordinary  rule,  based  merely 
on  the  order  of  alienation,  would  be 
to  sell  D's  part  first.  But  suppose 
D  could  show  that  the  other  tracts 
covered  by  C's  mortgage  were  an 
ample  security  for  his  debt;  would 
not  that  raise  an  equity  sufficient  to 
overcome  the  ordinary  rule,  and  re- 
quire as  between  C  and  D  that  C's 
part  should  be  first  sold?  I  think 
so;  and  that  is  substantially  the  re- 
lation which  these  defendants  hold 
to  each  other  in  the  present  case.  I 
can  see  no  reason  "why  the  principle 
requiring  the  creditor  having  two 
funds  to  resort  first  to  the  one  which 
the  other  cannot  reach,  is  not  appli- 
cable to  such  a  case.  It  is  tnae  that 
ordinarily  the  adequacy  of  the  first 
fund  might  be  tested  by  an  actual 
sale,  and  the  creditor  who  was  com- 
pelled first  to  resort  to  that,  might 
still  be  in  a  position  to  resort  to  the 
other,  to  supply  any  deficiency;  and 
here  B  may  not  be  left  in  such  a 
position.  I  think  that  is  good  reason 
why  such  a  decree  as  the  one  made 
in  this  case  should  be  matle  only 
upon  clear  proof  of  the  entire  ade- 
quacy of  the  remaining  security.  But 
I  am  not  prepared  to  say  that  courts 
should  not  act  upon  such  proof,  or 
that  a  party  so  situated  has  any  ab- 
solute right  to  have  the  adequacy  of 
his  remaining  seciirity  tested  in  all 
cases  by  an  actual  sale.  It  is-  obvious 
that  such  a  test  could  not  be  had  in 
a  case  like  this,  and  consequently,  if 


that  rule  was  adopted,  it  would  lead 
to  the  injustice  of  cutting  off  the 
last  mortgagee  entirely,  though  it 
might  not  be  necessary  for  the  pro- 
tection of  the  second.  Courts  are 
coDBtantly  adjudicating  upon  the 
most  important  rights  of  parties,  up- 
on the  theoiy  that  human  testimony 
can  estabUsh  facts  with  sufficient  cer- 
tainty to  justify  such  adjudication, 
and  I  think  the  question  of  the  ade- 
quacy or  inadequacy  of  a  security 
should  form  no  exception."  In  Mil- 
ler V.  Jacobs,  3  Watts,  477,  it  was 
held  that  one  lien  creditor  can  in- 
voke no  secui'ity  taken  by  another 
which  had  not  become  a  lien  when 
he  procured  his  o\vn;  hence,  a  sub- 
sequent mortgagee,  having  taken 
bonds,  but  without  a  wai*rant  to  con- 
fess judgment,  has  no  equity  to  call 
on  a  prior  mortgagee  to  enter  up  a 
judgment  on  a  bond  which  accom- 
panied his  mortgage  in  order  to  throw 
him  on  another  fund;  nor  can  the 
subsequent  mortgagee  object  to  the 
vacation  of  judgments  subsequently 
confessed  on  those  bonds,  though 
purposely  withdrawn  to  make  way 
for  other  judgment  creditors,  whose 
liens'  fund  are  consequently  posterior 
in  date  to  his  hen  on  the  mortgaged 
premises. 

1  Morrison  v.  Kurtz,  15  111.  193. 
See  Berry  v.  PoweU,  18  111.  98; 
White  v.  Dougherty,  3  Mart.  & 
Yerg.  309;  Breedlove  v.  Stump,  3 
Yerg.  257. 


308  LEGAL    LIQUIDATIONS    AND    REDUCTIONS. 

having  a  right  to  resort  to  but  one  fund  or  property,  it  will  be 
equally  available  to  one  claiming  through  a  sale  under  his  Uen.^ 

Same  when  the  funds  belong  to  two  separate  debtors. — 
The  rule,  however,  does  not  apply  when  one  of  the  creditors 
has  a  lien  for  his  debt  upon  two  funds  belonging  to  two  sepa- 
rate debtors,  and  the  other  has  a  hen  only  upon  a  fund  belong- 
ing to  one  of  the  debtors,  so  as  to  compel  the  first  creditor  to 
make  his  claim  wholly  out  of  that  debtor  whom  the  other  can- 
not reach ;  unless  there  be  some  peculiar  relations  between  these 
debtors,  which  would  make  it  equitable  that  the  debtor,  hav- 
ing but  one  creditor,  should  pay  the  whole  demand  against  him 
and  his  co-debtor.^ 

A  creditor  who  has  a  double  security,  or  has  a  right  to  go 
upon  more  than  one  fund  for  payment,  has  a  right  to  go  on  aU 
or  either  one  of  them  for  his  whole  debt.  His  interest  under 
each  one  is  several  and  independent  of  the  other,  and  cannot 
be  diminished  by  reference  to  the  value  of  the  other.^  A  cred- 
itor who  has  several  securities,  neither  one  of  which  is  sufficient 
for  the  payment  of  his  debt,  has  a  right  to  look  to  each  one  of 
them  for  its  payment,  in  the  same  manner  and  to  the  same  ex- 
tent that  he  could  do  if  he  had  no  other. 

It  is  only  when  it  may  happen  that  a  creditor,  who  has  more 
securities  than  one,  may  not  require  for  the  payment  of  his 
debt  the  entire  proceeds  of  all  his  securities,  that  any  marshal- 
ing of  them  can  take  place,  for  the  Ijenefit  of  other  creditors 
who  are  only  subsequently  entitled  to  a  lien  on  a  part  of  the 
same  fund  or  property.*  If,  for  example,  property  sufficient 
for  the  payment  of  fifty  cents  on  the  dollar,  be  mortgaged  to 
two  or  more  creditors,  and  the  mortgagor  afterwards  mort- 
gages other  property  to  the  same  and  other  creditors,  to  secure 
the  payment  of  the  same  debts,  and  also  the  debts  due  to  the 
other  creditors,  and  the  fund  arising  from  the  last  mortgage  is 

1  Marshall  v.  Moon,  36  111.  321.  See  App.  8  W.  &  S.  327.    See  Ex  parte 
Dodds    V.    Snyder,  44   111.   53,    and  Kendall,  17  Ves.  520. 
McCormick's  App.  55  Pa.  St.  252.  » Gwynne    v.    Edwards,    2    Russ. 

2  Wise  V.  Shepherd,  13  lU.  41;  289.  See  Kendall  v.  N.  E.  Carpet 
Dorr  V.  Shaw,  4  John.    Ch.  17,   20;  Co.  13  Conn.  383. 

1    Story's    Eq.   §  643;    Ebenhardt's        *  Logan  v.  Anderson,  18  B.  Mon.  114. 


MAKSHALING    AiCD    DISTEIBUTION.  309 

also  suiRcient  to  pay  fifty  cents  on  the  dollar  of  all  the  debts 
therem  named,  the  creditors  in  the  first  mortgage  have  a  right 
to  their  full  proportion  thereof  on  the  whole  amount  of  their 
debts,  without  any  regard  to  what  has  been  or  may  be  received 
by  them  on  the  first  mortgage.  The  two  securities  are  suffi- 
cient for  the  payment  of  those  creditors  who  are  entitled  to  the 
benefit  of  both ;  and  yet,  if  the  other  creditors,  in  the  second 
mortgage,  have  a  right  to  reduce  their  debts  by  applying  as  a 
credit  thereon,  their  amount  of  their  dividend  under  the  first 
mortgage,  and  to  restrict  them  to  a  ]_>ro  rata  of  the  proceeds 
of  the  last  mortgage  on  the  balance  of  their  debt,  when  thus 
reduced,  one  fourth  part  of  it  would  still  remain  unpaid,  al- 
though either  security  taken  separately  was  sufficient  for  the 
payment  of  one  half  of  the  debt.^  Whenever,  then,  a  mort- 
gage or  assignment  is  executed  to  secure  the  payment  of  cer- 
tain specified  debts,  and  it  contains  nothing  to  show  that  it 
was  intended  only  to  secure  the  payment  of  a  part  of  the  debt 
of  some  of  the  creditors,  and  not  the  whole  amount  thereof, 
the  mortgagees  or  beneficiaries  under  the  assignment  have  each 
a  right  to  a  full  ratable  share  of  the  fund  on  the  whole  amount 
of  theu'  respective  debts.  This  share  cannot  be  diminished  by 
the  existence  of  another  security,  where  both  securities  are  nec- 
essary for  the  payment  of  the  debt.  Equity  refuses  to  inter- 
fere or  to  marshal  the  secm^ities  to  the  prejudice  of  the  creditor 
entitled  to  the  double  fund.  And  it  makes  no  difference,  in 
such  a  case,  whether  the  benefit  of  one  of  the  funds  has  been 
realized,  or  still  remains  as  a  mere  secmity  for  the  payment  of 
the  debt.2 

1  Logan  V.  Anderson,  Bupra.  goods  sold,   on  the  insolvency  and 

2  Id. ;  Morris  v.  Olwine,  23  Pa.  St.  assignment  for  the  benefit  of  credit- 
441;  Shunk  &  Freedley's  App.  2  Pa.  ors  by  the  vendees,  does  not  rescind 
St.  309;  Kitteras'  Est.  18  Pa.  St.  416;  the  contract  of  sale;  and  the  ven- 
IVIiller's  App.  35  Pa.  St.  481 ;  Jervis  dors  are  entitled  to  a  pro  rata  dis- 
V.  Smith,  7  Abb.  N.  S.  217;  GraeflE's  tribution  out  of  the  assigned  estate; 
App.  79  Pa.  St.  146;  Patten's  App.  and  that  where  a  part  of  the  goods 
45  Pa.  St.  152;  Keirn's  App.  27  Pa.  had  been  delivered  and  the  balance 
St.  42;  Hess'  Est.  69  Pa.  St.  272;  which  had  been  detained  was  sold 
Brough's  Est.  71  Pa.  St.  460;  In  re  by  the  vendors,  who  applied  the  pro- 
Thorn,  Smith's  App.  3  Pa.  St.  331.  ceeds  to  the  payment  of  the  notes 
In  Patten's  App.  supra,  it  was  held  given  upon  the  sale,  leaving  a  bal- 
that  the  detention  by  vendors,  of  ance  still  due,  they  were  entitled  to 


310 


LEGAL   LIQUIDATIONS   AISTD   KEDUOTIONS. 


Pbinoiple  on  which  peioeity  deteemined  between  CEEDITOES. 
The  principle  is  believed  to  be  universal,  that  a  prior  lien 
gives  a  prior  claim  which  is  entitled  to  prior  satisfaction  out 
of  the  subject  which  it  binds,  unless  the  lien  be  intrinsically  de- 
fective, or  be  displaced  b^  some  act  of  the  party  holding  it 
which  should  postpone  him  in  a  court  of  law  or  equity  to  a 
subsequent  claimant.^  Where  surplus  moneys  arose  upon  the 
foreclosure  of  several  mortgages  and  were  thus  claimed:  by 
judgment  creditors,  having  the  first  lien  upon  two  such 
funds ;  by  a  mortgage  creditor  having  a  later  lien  on  only  one 
such  fund,  and  by  other  judgment  creditors  having  still  later 
liens  upon  all ;  the  prior  judginent  was  paid  out  of  the  fund  not 
subject  to  the  mortgage,  but  if  it  be  not  sufficient,  any  de- 
ficiency to  be  paid  prior  to  the  mortgage  out  of  the  fund  on 
which  the  mortgage  was  a  lien ;  then  the  mortgage  to  be  paid 
out  of  the  surplus  on  which  it  was  a  lien,  and  the  subsequent 
creditors  were  held  entitled  to  payment  only  after  payment  in 
this  manner  of  the  prior  judgment  and  mortgage  creditors.^ 


a  dividend  upon  the  whole  amount 
of  their  claim  at  the  date  of  the 
assignment.  See  Midgeley  v.  Slo- 
comb,  2  Abb.  N.  S.  275.  In  Breden- 
becker  v.  Lowell,  32  Barb.  9,  it  was 
held  that  where  an  ari*angement  was 
made  between  debtor  and  creditor, 
by  which  the  former  gives  a  new  se- 
curity upon  property  exceeding  in 
value  the  amount  of  the  debt,  and 
receives  back  the  evidence  of  his  in- 
debtedness, there  being  at  the  time 
a  general  fund  or  security  by  mort- 
gage upon  real  estate  embracing  aU 
the  debts  of  the  debtor,  but  insuffi- 
cient to  pay  the  whole,  the  effect  of 
such  an  arrangement  was  to  make 
the  specified  seciu'ity  the  ijrimary 


fund  for  the  payment  of  the  debt 
specifically  secured  by  it,  and  to 
postpone  the  right  of  that  creditor 
to  participate  in  the  general  fund 
until  the  specific  fund  had  been 
exhausted. 

1  Rankin  v.  Scott,  12  Wheat.  177 
Broom's  Max.  236;  9  Paige,  61,  note 
Weaver  v.  Toogood,  1  Barb.  238 
Embree  v.  Hanna,  5  John.  101 
Muir  V.  Schenck,  3  Hill,  228;  Watson 
V.  Le  Row,  6  Barb.  481;  Lynch  v. 
Utica  Ins.  Co.  18  Wend.  236;  PoiUon 
V.  Martin,  1  Sandf.  Ch.  569;  Berry  v. 
Mutual  Ins.  Co.  2  John.  Ch.  602. 

2  New  York  Life  Ins.  &  F.  Co.  v. 
Vanderbilt,  12  Abb.  N.  S.  458. 


BET-OFF  OF   JUDGMENTS.  311 


Section  6. 

set-off  of  judgments. 

Courts  have  inherent  power  to  direct  such  set-off —  When  it  will  'or  will  not 
be  granted — The  interests  of  the  real  parties  considered  —  Cannot  he 
granted  until  judgment  rendered  —  An  assignee  must  malce  absolute 
purchase  —  Set-off  does  not  depend  on  the  nature  of  the  cause  for  which 
judgment  rendered  —  Attorneys'  lien. 

Courts  have  inherent  power  to  direct  such  set-off.  —  A 
court  of  law  has  power  to  order,  on  motion,  mutual  judgments 
to  be  set  off  against  each  other.  It  is  a  common  law^  power,  not 
derived  from,  nor  exercised  in  pursuance  of  the  statutes  author- 
izing parties  to  set  off  mutual  debts.  It  is  derived  from  the 
general  jurisdiction  of  the  court  over  its  suitors ;  it  is  an  equi- 
table part  of  the  court's  jurisdiction,  and  has  been  frequently 
exercised.^  Com-ts  proceed  upon  the  equity  of  the  statute  of 
set-offs ;  but  as  their  power  consists  in  the  authority  they  have 
over  their  suitors,  rather  than  any  express  or  delegated  power, 
their  action  in  such  cases  has  been  termed  the  exertion  of  the 
law  of  the  court.  Suitors  may  ask  their  interference  in  effect- 
ing such  set-offs,  not  ex  debitojustiUe,  but  only  ex  gratia  curke.'^ 

When  it  will  or  will  not  be  granted.  —  One  judgment  will 
not  be  ordered  to  be  set  off  against  another,  on  motion,  unless 
it  is  a  judgment  Avhich  is  conclusive  on  the  party  agamst  whom 
it  is  rendered,  and  which  the  party  recovering  and  claiming  the 
right  to  offset  has  a  clear  right  to  enforce;  it  must  have  been 
rendered  by  a  court  wliich  had  jurisdiction ;  ^  and  the  judg- 
ment must  be  final;  this  right  of  set-off  cannot  be  asserted 
pending  an  appeal  from  the  judgment.*    An  appeal,  however, 


1  MitcheU  v.  Oldfield,  4  T.  R.  133 
Williams  v.  Evans,  2  McCord,  203 
Talbert  v.  Harrison,  1  Bailey,  599 


Hayw,  14;  Holmes  v.  Robinson,  4 
Ohio,  90;  Meador  v.  Rhyne,  11 
Rich.  631;  Benjamin  v.  Benjamin, 


Herrick  v.  Bean,  20  Me.  51;  Temple  17  Conn.  110;  Cooper  v,  Bigelow,  1 

V.  Scott,  3  Mimi.  419;  Makepeace  v.  Cow.  206.     See  Zogbaum  v.  Parker, 

Coates,  8  Mass.  451;  Green  v.  Hatch,  55  N.  Y.  120. 

12  Mass.    195;    Ames  v.  Bates,  119  2  Simson  v.  Hart,  14  John.  63,  757. 

Mass.   307;  Mason  v.   Knowlton,    1  3  Harris  v.  Palmer,  5  Barb.  105. 

Hill,  218;  Harris  v.  Palmer,  5  Barb.  i  Pierce  v.  Tuttle,  51  How.  Pr.  193. 
105;    Noble    v.    Howard's   Ex'r,    2 


312 


LEGAL  LIQUIDATIONS   AND  EEDTJCTI0N8. 


only  suspends  the  right  of  set-off,  and  the  court  may  stay  pro- 
ceedings on  the  other  judgment,  for  the  protection  of  that 
right,  until  the  appeal  is  determined.^  In  the  exercise  of  this 
jurisdiction,  courts  will  act  upon  the  equitable  as  well  as  legal 
interests  and  relations  of  the  parties.  Applications  for  such 
set-off  not  being  founded  on  any  statute  or  governed  by  any 
fixed  or  arbitrary  rule,  are  addressed  to  the  discretion  of  the 
court,  and  their  discretion  will  be  so  exercised  as  to  do  equity, 
and  not  to  sanction  fraud  ^  or  oppression.^ 


'Id.;  Terry  v.  Roberts,  15  How. 
Pr.  65.  In  Irvine  v.  Myers,  6  Minn. 
563,  it  was  held  that  where  the  right 
of  set-off  was  suspended  by  appeal 
after  a  motion  made,  it  might  re- 
main undecided  until  the  final 
determination  of  the  appeal. 

2  Talbot  V.  Harrison,  1  Bailey,  599; 
Meador  v.  Rhyne,  11  Rich.  631. 

3  Williams  v.  Evans,  2  McC.  123. 
Williams  had  obtained  judgment 
against  Evans  for  $188;  subsequently 
Evans  obtained  a  judgment  against 
Williams  for  $240  in  trover.  Will- 
iams, instead  of  moving  to  have  his 
judgment  set  off  against  the  larger 
one,  which  had  been  recovered 
against  him,  issued  a  ca.  sa.  against 
Evans,  and  then  assigned  liis  judg- 
nient  to  a  third  person  for 
value.  Evans  was  imprisoned  on 
the  ca.  sa.,  and  so  remained 
until  he  died.  At  the  next  term, 
Williams,  who  seems  to  have  repos- 
sessed himself  of  the  judgment  re- 
covered by  him,  moved  to  have  it 
set  off  against  that  obtained  by 
Evans.  On  a  motion  to  rescind  an 
order  allowing  such  set-off,  Nott,  J., 
said:  "There  is  no  doubt  but  that 
the  court  has  the  power  to  order  mu- 
tual judgments  to  be  set  off  against 
each  other.  This  is  a  common  law 
power,  and  is  not  derived  from  the 
act  authorizing  parties  to  set  off  mu- 
tual debts.  .  .  .  If  it  constitute 
a  part  of  the  equitable  jurisdiction 


of  the  court,  it  ought  to  be  so  exer- 
cised as  to  do  equity,  and  not  to 
sanction  fraud;  and  a  person  who 
wishes  to  have  the  benefit  of  it 
ought  to  avail  liimself  of  the  earliest 
opportunity  to  make  his  application, 
and  not  to  delay  until  the  interests 
of  third  persons  have  become  in- 
volved. If  the  party  in  this  case  had 
made  his  application  at  the  court 
when  his  judgment  was  obtained,  it 
ought  to  have  been  granted.  He  had 
three  methods  of  proceeding;  one, 
that  which  he  is  now  endeavoring  to 
pursue;  another  by  ^.  fa.  against  the 
goods  of  the  defendant;  and  the  third 
by  taking  his  body  in  execution. 
He  chose  the  latter,  and  after  hav- 
ing made  his  election  (and  particu- 
laiiy  under  the  circumstances  of 
this  case),  he  ought  to  be  bound  by 
it;  at  least  he  can  have  no  high  claim 
to  the  assistance  of  the  court  to  re- 
lieve him  from  the  difficulty  of  his 
own  voluntary  creation.  It  is  true 
a  judgment  is  not  a  negotiable  in- 
strument; nevertheless,  an  assign- 
ment conveys  an  equitable  interest 
to  the  assignee;  such  as  a  court  of 
law  will  notice  and  respect,  in  all 
cases  of  appeal  to  its  discretion. 
Norman  v.  Crocker,  1  Bay,  246.  A 
bond  is  not  negotiable,  and  yet  this 
court  would  so  far  respect  the  as- 
signee of  one  as  not  to  permit  a 
judgment  recovered  upon  it  to  be  set 
off  against  one  recovered  against  the 


SET-OFF   OF   JUDGMENTS. 


313 


The  parties  beneficially  interested  may  assert  their  right,  and 
a  set-off  between  the  nominal  parties  will  be  refused  where  it 
would  be  prejudicial  to  those  having  equitable  interests.  Thus, 
a  comt  will  not  order  a  judgment  against  an  executor  on  his 
own  I'iglit  to  be  set  off  against  a  judgment  in  his  favor  in  a 
promissory  note  taken  for  goods  of  his  testator  sold  by  him,  if 
it  appear  that  the  creditors  or  legatees  of  the  testator  will  be 
thereby  prejudiced.^ 


obligee.  The  plaintiff,  by  taking  the 
bod}^  of  the  defendant,  had  volun- 
tarily relinquished  every  other  claim 
upon  him;  and  the  claim  which  he 
now  has  upon  his  property  is  re- 
vived onh-  by  the  accidental  circum- 
stance of  his  death.  SupiX)se  the 
assignee  of  this  judgment  had  en- 
forced an  execution  against  Will- 
iams in  the  life  time  of  Evans,  and 
during  the  time  he  had  his  body  in 
execution,  could  Williams  have  re- 
quired that  money,  while  in  the 
hands  of  the  sheriff,  to  be  paid  over 
to  him;  certainly  not;  because,  hav- 
ing taken  the  body  iu  execution,  he 
must  have  been  contented  Avith  it; 
he  could  not  have  double  satisfac- 
tion. A  release  of  Evans  from  cus- 
tody would  have  been  a  release  of 
the  debt.  He  had  a  mild  and  easy 
method  of  enforcing  the  payment  of 
his  dbbt,  if  he  had  chosen  to  make 
use  of  it.  Instead  of  which  he  re- 
sorted to  the  most  rigorous  and  un- 
feeling known  to  the  law;  like 
another  Shylock,  he  would  have 
nothmg  short  of  his  flesh;  and  hav- 
ing no  longer  the  means  of  gratify- 
ing his  vengeance,  he  now  comes 
and  asks  this  court,  to  take  from  a 
humane  and  merciful  creditor  a 
vested  right,  to  satisfy  a  debt  which 
he  had  it  in  his  jjower  to  receive, 
and  which  he  voluntarily  relin- 
quished to  gratify  a  vindictive  pas- 
sion. The  motion  must  be  granted." 
Se?  Cooper  v.  Bigelow,  1  Cow.  206. 
In  Blackman  V.  Manlove,  18  Cul.  388, 


the  plaintiff  recovered  judgment 
against  the  defendant  for  seizure  as 
sheriff  of  exempt  property  on  exe- 
cution. The  defendant  then  pro- 
cured an  assignment  to  him  of  the 
judgment  on  ■which  the  execution 
issued,  and  moved  the  court  to  set 
off  the  same  against  the  other.  Held, 
the  motion  was  properly  refused; 
the  defendant  being  a  wrongdoer, 
the  judgment  for  the  value  of  the 
exempt  property  must,  as  between 
the  plaintiff  and  defendant,  be  re- 
garded as  standing  in  the  place  of 
that  property.  If  the  defendant 
were  allowed  in  this  way  to  take  ad- 
vantage of  his  own  wi'ong,  he  would 
practically  defeat  the  object  of  the 
exemption  law. 

'  Tolbert  v.  Harrison,  1  Bailey,  599. 
In  this  case  the  court  say:  "The 
note  given  to  the  executor  for  a  con- 
tract made  with  him,  must  be 
treated  and  considered  as  his  own. 
In  a  legal  point  of  view,  it  was  the 
note  of  Sterling  Harrison  to  Jos.  S. 
Tolbert.  It  is,  however,  unques- 
tionable, that  in  fact  it  was  a  part 
of  the  assets  of  the  estate  of  his 
testator;  and  the  executor  might 
and  ought  to  have  treated  it  as  such. 
He,  on  the  present  occasion,  claims 
that  it  should  be  considered  as  the 
assets  of  the  estate.  This  is  the 
equity  of  the  case;  and  the  court  of 
equity,  in  the  exercise  of  the  juris- 
diction which  legitimately  belongs 
to  it  over  trustees,  Avill  follow  a  note 
of  hand,  as  the  property  of  an  es- 


314: 


LEGAL  LIQUIDATIONS  AND  EEDUCTIONS. 


The  mTEEEST  of  the  keal  parties  consideked. —  It  will  not 
be  allowed  in  favor  of  the  nominal  judgment  creditor  where 
it  appears  that  before  the  judgment  was  obtained  the  cause 
of  action  had  been  assigned  to  a  third  person.^    But  if  the 


tate,  if  really  taken  for  assets  of 
the  estate  sold  by  the  administrator, 
though  the  note  be  taken  in  the  pri- 
vate name  of  the  administrator. 
Gleen  v.  Baxter,  4  Desaus.  153. 

"The  question  is,  whether  this 
court  is  bound  by  legal  rules,  to  set 
off  judgments  in  all  cases  where 
they  are  in  the  same  right.  It  is 
clear  that  it  is  not." 

In  Ames  v.  Bates,  119  Mass.  397, 
W  purchased  of  A  a  claim  against 
B  pending  an  action  by  A  upon  the 
claim.  B  had  previously  purchased 
a  claim  against  A,  and  had  given 
notice  thereof  to  A.  Suit  was 
brought  thereon  by  B,  in  which  W 
appeared  as  adverse  claimant  of 
funds  in  the  hands  of  B,  summoned 
as  trustee.  At  the  time  of  his  pur- 
chase of  the  first  claim,  W  had  no 
knowledge  of  the  claim  against  A. 
Held,  that  judgment  for  the  plaint- 
iff in  the  second  action  could  not  be 
set  off  agai)ist  judgment  for  the 
plaintiff  in  the  first  action.  The 
court  say:  "  While  there  is  no  ex- 
press statute  authority  for  setting 
off  judgments  where  the  creditor  in 
one  action  is  the  debtor  in  another, 
except  in  a  limited  number  of  cases 
(Gen.  Stats,  ch.  126,  §§  2,  3,  5);  yet 
this  power  has  been  frequently  ex- 
ercised by  courts  of  law,  and  rests 
upon  their  jurisdiction  over  suitors 
in  them  and  their  general  superin- 
tendence of  proceedings  before 
them.  Makepeace  v.  Coates,  8  Mass. 
451;  Green  v.  Hatch,  12  Mass.  195. 
Such  a  power  is  only  to  be  exercised 
upon  cai'ef  ul  consideration  of  all  the 
circumstances  of  the  transactions 
out  of  which  the  judgments  arise, 


and  in  order  to  ijrotect  the  just 
rights  of  parties. 

"In  the  present  case,  the  nom- 
inal parties  to  the  judgments  are 
not  the  same,  nor  is  the  equitable 
owner  of  the  judgment  recovered 
in  the  name  of  Ames,  the  defendant 
in  the  suit  of  which  Bates  is  the 
equitable  owner.  But  even  if  Ames 
had  continued  to  be  the  owner  of 
the  judgment  recovered  in  his  name, 
it  might  well  be  questioned  whether 
Bates  should  be  permitted  to  set  off 
against  it  the  judgment  recovered 
by  him  in  the  name  of  Freeman  and 
another,  when  he  could  not  have 
set  off  the  claim  upon  which  the 
judgment  was  founded.  The  reason 
why  a  party  is  not  permitted  by  the 
statute  to  set  off  such  claims  may 
fairly  be  presumed  to  be,  that  it  is 
not  just  that  one  should  be  encour- 
aged, instead  of  paying  his  own 
debt,  to  seek  out  claims  against  his 
creditor  in  order  thus  to  change  the 
position  of  parties  pendente  lite;  and 
this  reason  is  equally  applicable  to 
judgments  which  may  afterwards 
be  obtained  upon  such  claims.  How- 
ever this  might  be  as  to  Ames  him- 
self, it  is  clear  that  as  to  the  assignee 
of  Ames,  Bates  should  not  be  al- 
lowed to  effect  this  change.  "When 
the  equitable  rights  of  third  parties 
would  be  affected  by  an  offset  of 
this  character,  it  is  not  to  be  made 
to  the  injury  of  intervening  rights 
honestly  acquired.  Green  v.  Hatch, 
ubi  supra;  Zogbaum  v.  Parker,  55 
N.  Y.  120;  Gay  v.  Gay,  10  Paige, 
369;  Ramsey's  Appeal,  2  Watts,  228." 

1  Swift  V.  Prouty,  64  N.  Y.  545; 
Perry    v.   Chester,    53    N.    Y.   240; 


SET-OFF   OF   JUDGMENTS.  315 

right  exists  at  the  time  of  the  assignment  of  a  judgment,  the 
assignee  will  stand  only  in  the  shoes  of  the  assignor.^ 

Cannot  be  granted  until  judgment  rendeeed. —  The  right 
does  not  attach  on  the  recovery  of  a  verdict  merely,  and  if  that 
be  assigned  before  judgment  thereon  is  rendered,  it  is  not  sub- 
ject to  a  set-off  of  a  judgment  against  the  assignor.^ 

Assignee  must  make  an  absolute  purchase. —  And  an  assignee 
of  a  judgment,  to  be  entitled  to  assert  this  right  of  set-off,  must 
acquire  the  judgment  absolutely.  If  the  purchase  is  made  on 
the  condition  that  the  motion  for  set-off  is  successful,  and  to  be 
otherwise  void,  the  o^vnership  is  not  acquired  with  sufficient 
absoluteness  to  enable  the  assignee  to  use  it  as  a  set-off.*  So, 
an  assignment  upon  condition  of  a  rescission  of  the  transfer  in 
case  the  assignee  cannot  avoid  a  set-off,  is  not  sufficiently 
absolute.*  l^or  will  an  assignment  of  a  judgment  to  be  col- 
lected for  the  assignor,  less  compensation  for  collecting,  confer 
the  requisite  ownership.^ 

A  party  seeking  to  set  off  a  judgment  in  his  favor  against  one 
recovered  against  him  should  be  the  owner  of  the  judgment  in 
his  own  right.^    The  mutual  judgments  should  be  in  the  same 

Mackey    v.   Mackey,    43    Barb.   58;  that  even  if  a  plaintiff,  in  an  action 

Turner    v.    Satterlee,   7    Cow.   480;  to  procure  a  set-off  of  a  judgment, 

Nash  V.  Hamilton,  3  Abb.  35.  be  entitled  to  set  off  the  judgment 

1  Ferguson  v.  Bassett,  4  How.  Pr.  assigned  to  him  against  a  judgment 
168;  Noxon  v.  Gregory,  5  How.  Pr.  recovered  against  himself,  he  can- 
339;  Cooper  v.  Bigelow,  1  Cow.  56,  not  make  use  of  such  assigned  judg- 
206;  Turner  v.  Crawford,  14  Kan.  ment  to  defeat  the  incident  claims 
499.  See  Duncan  v.  Bloomstock,  3  for  costs  growing  out  of  proceedings 
McCord,  318;  Ramsey's  App.  2  instituted  before  the  assignment,  if 
Watts,  328.  properly    commenced.      Such    pro- 

2  Id. ;  Graves  v.  Woodbury,  4  Hill,  ceedings  may  have  been  legitimate 
559;  Bagg  v.  Jefferson,  C.  P.  10  and  necessary  consequences  of  the 
Wend.  615;  People  v.  Judges,  etc.  6  judgment  when  taken;  and  he  has 
Cow.  598;  Garrick  v.  Jones,  3  Dowl.  no  right  to  take  away  the  founda? 
P.  C.  157;  Wood  v.  Merritt,  45  How.  tion  of  such  proceeding,  if  still 
Pi"-  471.  pending,    by    satisfjing    the    judg- 

3  Butler  V.  Niles,  26  How.  Pr.  G;  ment  with  those  held  by  him.  It  is 
S.  C.  35  How.  Pr.  329.  not  equivalent  to  payment  and  ao- 

•1  Gilman  v.  Van  Slyck,  9  Cow.  469.      ceptanco    in    satisfaction,  pendente 
5  Porter  v.  Davis,  3  How.  Pr.  30.      lite. 
It  was  held  in  Butler  v.  Niles,  supra,         ^  Mason  v.  Knowlton,  1  Hill,  218. 


316  LEGAL   LIQUIDATIONS   AND   KEDUCTIONS. 

right.'  It  is  immaterial  in  whose  names  the  judgments  are 
respectively  recovered;  the  right  of  set-off  exists  between  the 
several  beneficial  owners  and  is  confined  to  them.  It  is  no  ob- 
jection that  the  mutual  judgments  are  not  nominally  due  to  and 
from  the  same  number  of  persons ;  ^  if  the  equitable  claims  of 
many  become  vested  in  one,  they  may  be  set  off  against  sep- 
arate demands,  and  vice  'versa.^ 

Does  not  depend  on  the  nature  of  the  cause  for  which 
JUDGMENT  RENDERED. —  Nor  is  it  material  what  was  the  original 
cause  of  action,  whether  in  tort  or  contract ;  when  a  final  judg- 
ment is  obtained  the  original  cause  is  merged,  and  judgments 
are  technically  contracts  of  record,  and  on  motion  may  be 
made  to  mutually  compensate  and  satisfy  each  other.^  l^or  is 
it  necessary  that  both  judgments  should  be  recovered  in  the 
same  court.^ 

The  motion  should  be  made  in  the  court  where  the  judgment 
against  the  moving  jDarty  was  obtained.^  And  the  mo^^ng  papers 
should  be  entitled  in  all  the  causes,  whether  in  the  same  court 
or  not.'^ 

Attorneys'  lien. —  The  right  of  set-off  is  superior  to  the  hen 
of  attorneys  for  their  costs,  as  is  generally  held  in  this  country, 
and  now  settled  by  rule  for  all  the  courts  in  England ;  when- 
ever the  set-off  is  applied  for  by  action,  either  at  law  where  the 
statutes  of  set-off  apply,  or  in  equity  where  the  rule  is  to  fol- 
low the  law.^  But  where  the  equitable  power  of  either  court  is 
invoked  by  motion,  the  statute  of  set-off  is  not  the  obligatory 
guide,  and  the  court  proceeding  upon  its  own  discretion,  ^vill 

1  Holmes  v.  Robinson,  4  Ohio,  90.         7  Alcott  v.   Davidson,  2  How.  Pr. 

2  Id. ;  Simson  v.  Hart,  14  John.  63,  44.  In  North  Carolina  the  practice 
75.  has  been  to  set  off  judgment  by  scire 

3 Id.;  Bull.  N.  P  336.  facias.     Noble  v.  Howard's  Ex'r,  2 

4HoweU    V.    Shand,    35    Ga.    66;  Hay w.  14. 

King  V.  Hoare,  13  M.  &  W.  494,  504.  SNicoU  v.  NicoU,   16  Wend.  446; 

5  Noble  V.  Howard's  Ex'r,  2  Hayw.  Roberts  v.  Carter,  24  How.  Pr.  44; 
14;  Ewen  v.  Terry,  8  Cow.  126;  Ross  Brooks  v.  Hanford,  15  Abb.  Pr.  342; 
V.  Hicks,  11  Barb.  481;  Irvine  v.  Hayden  v.  McDermott,  9  Abb.  Pr. 
Myers,  6  Minn.  562.  14;  Benjamin  v.  Benjamin,  17  Conn. 

6  Cook  V.  Smith,  7  Hill,  186;  Ross  110;  People  v.  N.  Y.  Com.  P.  C.  18 
V.  Hicks,  11  Barb.  481;  RusseU  v.  Wend.  649;  Hovey  v.  Rubber  Tip  P. 
Conway,  11  Cal.  93.  Co.  14  Abb.  N.  S.  66. 


SET-OFF   OF   JUDGMENTS. 


317 


sustain  the  attorney's  lien,  and  give  it  preference.^  An  attorney 
has  a  lien  for.  his  costs  upon  money  recovered  by  his  client,  or 
awarded  him,  in  a  cause  in  Avhich  the  attorney  was  employed, 
in  case  the  money  has  come  into  the  hands  of  the  attorney ;  or 
the  latter  may  stop  the  money  in  transitu,  by  giving  notice  to 
the  opposite  party  not  to  pay  it,  until  his  claim  for  costs  be  sat- 
isfied, and  then  moving  the  court  to  have  the  amount  of  his  costs 
paid  to  him  in  the  first  instance.  And  if,  notwithstanding  such 
notice,  the  other  party  pay  the  money  to  the  client,  he  is  still  ha- 
ble  to  the  attorney  for  the  amount  of  his  lien ;  and  the  attorney, 
in  such  case,  will  not  be  prejudiced  by  any  collusive  release  given 
by  his  client.  But  unless  such  notice  is  giv^en,  the  chent  may 
compromise  with  the  opposite  party,  and  give  him  a  release 
without  the  intervention  of  his  attorney ;  and  the  attorney,  in  that 
event,  can  afterwards  look  to  his  chent  only  for  payment.^  This 
hen  has  sometimes  been  supposed  to  be  confined  to  some  fixed 
and  certain  amount  allowed  to  an  attorney  by  statute,  and  that 
it  does  not  extend  to  a  quantum  meruit  claim  for  his  services.' 


iWard  V.  Wordsworth,  1  E.  D. 
Smith,  598;  Haoght  v.  Halcomb,  16 
How.  Pr.  163;  Peckham  v.  Barca- 
low,  Lalor'sSupp.  112;  Smith  v.  Low- 
den,  1  Sandf.  696;  Gilion  v,  Fryatt, 
2  Sandf.  638;  Sweet  v.  Bartlett,  4 
Sandf.  661;  Roberts  v.  Carter,  17 
How.  Pr.  341 ;  S.  C.  24  id.  44;  Martin  v. 
Kanouse,  17  How.  Pr.  146;  De  Figa- 
niere  v.  Young,  2  Robt.  670;  Har- 
vey V.  The  Rubber  Tip  P.  Co.  14  Abb. 
N.  S.  66;  Bishop  v.  Garcia,  14  Abb. 
N.  S.  69. 

2  Graham  Pr,  61;  Ex  parte  Kyle,  1 
Cal.  332;  Mansfield  v.  Borland,  2  Cal. 
509;  RusseU  v.  Conway,  11  Cal.  108; 
Wilkins  v.  Butterman,  4  Barb.  47; 
Ten  Broeck  v.  DeWitt,  10  Wend. 
617;  Bradt  v.  Koon,  4  Cow.  416;  Mar- 
tin V.  Hawkes,  15  John.  405;  Chap- 
man V.  How,  1  Taunt.  341 ;  Omerod 
V.  Tate,  1  East,  464;  Furman  v.  Gib- 
son, 3  Atk.  720;  Read  v.  Dupper,  6 
T.  R.  361;  Watkins  v.  Carmichaol,  1 
Doug.  101;  Schoole  v.  Noble,  1  H. 
Bl.  23;  Ackerman  v.  Ackerman,  14 


Abb.  Pr.  229;  Bishop  v.  Garcia,  14 
Abb.  N.  S.  69. 

3  Ex  parte  Kyle,  1  Cal.  332;  Daven- 
port V.  Ludlow,  4  How.  Pr.  337; 
Benedict  v.  Harlow,  5  How.  Pr. 
347.  But  a  more  reasonable  view, 
in  the  writer's  judgment,  is  to  be 
found  in  the  able  opinion  of  Daly, 
J.,  in  Ward  v.  Wordsworth,  1  E,  D. 
Smith ,  598.  He  says :  "  By  the  Eng- 
lish practice,  the  amount  that  the 
prevailing  party  was  entitled  to  re- 
cover for  the  services  of  an  attor- 
ney, was  determined  by  the  taxing 
officer,  and  included  in  the  judg- 
ment; and  the  amount  thus  taxed, 
in  the  absence  of  a  special  agree- 
ment, was  regarded  as  the  proper 
measure  of  compensation  between 
the  attorney  and  his  client.  In 
other  cases,  the  partj^  was  bound  to 
have  the  attorney's  bill  taxed  within 
a  mouth  after  it  was  served  upon 
him,  and  the  bill  thus  taxed  was 
taken  as  the  measure  of  compensa- 
tion in  an    action   brought  by  the 


318 


PECUNTABY   REPKESENTATTVE   OF   VALUE. 


CHAPTER  YL 


PECUNIARY  REPRESENTATIVE  OF  VALUE. 


Section  1. 


MONEY. 


All  civilized  nations  have  some  method  or  system  of  pecun- 
iary numeration,  based  upon  an  arbitrary  unit  of  value  sanc- 
tioned by  law.  By  it  accounts  are  kept,  the  amounts  of  debts 
and  judgments,  expressed,  and  wealth  computed.  They  have, 
also,  gold  and  silver  coins,  either  representing  that  unit  or  some 
midtiple  of  it,  or  other  value  estimated  with  reference  to  it. 
These  coins  are  of  intrinsic  value,  and  being  made  and  issued 
by  the  sovereign  power,  are  acceptable  to  everybody,  and  there- 
fore have  a  universal  currency,  as  a  convenient  and  necessary 
medium  of  exchange  and  payment.  The}''  are  money  in  the 
strict  sense.     All  pecuniary  obligations  are  measured   by  and 


attorney  against  his  client  to  re- 
cover for  his  services;  or  if  he 
omitted  to  tax  it,  the  bill  was 
deemed  conclusive  as  to  the  rea- 
sonableness of  the  charges,  and 
he  was  not  permitted  to  dispute 
the  items  upon  the  trial.  Williams 
V.  Frith,  1  Doug.  189;  Hooper  v. 
Tile,  id.  198,  and  note;  Anderson  v. 
May,  3  B.  &  P.  337.  In  this  state, 
the  amount  which  an  attorney 
might  claim  for  his  services,  or 
which  might  be  allowed  for  such 
services  by  the  covirt,  was  made  the 
matter  of  statute  regulation,  by  an 
act  passed  the  18th  February,  1789, 
although  there  had  been  colonial 
statiites  upon  the  subject  as  early  as 
1710,  in  which  it  was  provided  that 
no  officer  or  other  person  should  ex- 
act, demand,  ask,  or  be  allowed, 
any  quota  or  other  fee  or  reward, 
for  or  in  respect  to  any  service  to  be 
done  or  performed,   than  such  as 


was  therein  specified.  The  act, 
then,  prescribes  the  sums  that  shall 
be  allowed  respectively  for  certain 
services.  Jones  &  Varick's  edi- 
tion of  the  Laws  of  New  York,  vol. 
3,  417.  And  the  regulation  of  these 
items,  or  rather  the  adjustment  of 
the  tariff  of  fees,  has  been  the  sub- 
ject of  constant  statutory  revision 
from  that  time  down  to  the  passage 
of  the  code.  It  was  accordingly 
held,  that  as  the  statute  marked  out 
and  particularized  the  costs  which 
could  be  recovered  for  the  services 
of  an  attorney,  and  had  forbidden 
attorneys  to  exact  or  demand  any 
more  or  other  than  such  as  was 
specified  by  the  statute,  an  attorney, 
in  an  action  against  his  client  for 
costs,  was  restricted  to  the  amount 
that  was  recoverable  as  costs  in  the 
action.  Scott  and  Wigram  v.  El- 
mendorf,  13  J.  R.  315;  in  which  case 
the  defendant    obtained    a  verdict 


MONET. 


319 


expressed  in  the  value  they  represent,  and  are  solvable  by  them, 
Kor  can  such  obligations  be  otherwise  liquidated  or  paid,  except 
by  agreement ;  unless  the  state  which  has  the  power  to  coin 
money  prescribes  some  other  form  of  legal  money.  The  pre- 
cious metals  being  valued  according  to  a  uniform  and  fixed  stand- 
ard, are  the  only  proper  measures  of  value.  Their  voiue  is 
determined  by  weight  and  purity,  and  the  impress  on  the  coins 
is  a  certificate  so  generally  relied  upon  that  the  pieces  readil}^ 
j^ass  for  their  nominal  value  by  count. 

Money  is  cosmopolitan.  A  contract  which  is  a  money  con- 
tract where  it  is  entered  into  and  to  be  performed,  is  a  money 
contract  everywhere.  To  this  extent  the  money  of  one  nation 
is  treated  as  money  by  another,  as  distinguished  from  a  mere 
chattel  or  a  commodity.  Thus,  money  lent  in  India  m.  pagodas, 
and  sued  for  in  England  as  money  lent,  Avas  held  recoverable  in 
that  form.  It  was  contended  that  the  averment  that  the  defend- 
ant was  indebted  for  "  lawful  money  of  Great  Britain,"  was 
not  supported ;  but  Gibbs,  J.,  said,  "  the  doctrine  contended  for 


against  the  plaintiff.  The  defend- 
ants' attorneys  sued  their  client  for 
their  costs,  and  it  was  held  that  as 
the  plaintiff,  by  the  statute,  could 
have  recovered  but  common  pleas 
costs,  the  attorneys  were  limited  to 
that  amount:  and  it  was  doubted  if 
they  had  made  an  agreenient  with 
their  client  for  a  greater  sum,  if, 
under  the  statute,  they  could  have 
recovei'ed  it.  All  these  statutes 
have  been  abolished  by  the  code, 
and  the  attornej'^'s  compensation  is 
now  left  to  the  agreement  of  the 
parties,  express  or  implied.  But  the 
repeal  of  these  statutes  cannot  affect 
the  attorney's  right  to  a  lien  upon 
the  judgment.  They  merely  regu- 
lated or  fixed  the  amount  which  he 
could  recover  for  his  services  in 
certain  cases;  and  in  that  respect 
necessarily  limited  the  extent  of 
his  lien,  but  did  not  create  it.  For 
services  not  embraced  in  these 
statutes,  he  had  a  lien  upon  the  pa- 
pers, or  upon  the  funds  of  the  client 


in  his  hands,  and  his  lien  upon  the 
judgment  was  limited  by  them  to  a 
certain  amount  prescribed  for  ser- 
vices in  obtaining  it.  All  that  the 
code  has  done  has  been  to  abolish 
the  fee  bill,  and  take  away  aU  re- 
straints upon  attorneys  making 
agreements  with  their  clients  for 
then-  services.  It  has  left  the  attor- 
ney to  agree  with  his  client  for  a 
greater  or  a  less  sum  than  is  given 
to  the  party,  by  way  of  indemnity 
for  his  expenses;  but  I  cannot  see 
how  this  legislation  can  be  regarded 
as  abolishing  or  affecting  the  attor- 
ney's lien.  He  did  not  derive  it 
from  these  statutes.  It  existed  long 
before  the  fee  biU  was  enacted. 
Tlie  riglit  to  a  lien  for  services  ren- 
dered is  one  thing,  a7id  the  measure 
by  which  tlie  value  of  these  services 
is  ascertained,  is  another.  The  lat- 
ter has  been  the  subject  of  statutory 
enactment;  the  former  has  not.  The 
statute  has  not  interfered  with  the 
ri^ht  of  lien,  except  to  limit  the  ex- 


320 


PECinsnAKT   KEPKESEXTATIVE   OF   YALUE. 


has  been  exploded  these  thirty  years."  ^  The  real  meaning  of 
such  a  count  was  afterwards  explained  to  be  that  the  defendant 
is  indebted  for  money  of  such  a  value  or  amount  in  English 
money.^  So  a  contract  made,  and  to  be  performed  in  the  same 
country,  for  the  payment  of  what  is,  at  the  time  of  making  the 
contract,  money,  will  be  held  a  money  contract  after  that  cur- 
rency has  been  abohshed  and  another  entirely  different  has  been 
substituted. 

Contracts  for  the  payment  of  money  are  deemed  payable  in 
the  legal  money  of  the  country  where  such  contracts  are  to  be 


tent  of  it;  and  when  that  limitation 
is  removed,  by  repeal  of  all  statutes 
regulating  the  fees  of  attorneys,  the 
right  of  lien,  upon  the  authority  of 
adjudged  cases,  stands  precisely  as 
it  stood  before.  Justice  "Willai-d 
thinks,  in  Benedict  v.  Harlow,  supra, 
that  the  reason  for  upholding  the 
lien  does  not  exist,  because  the  at- 
torney's compensation  is  no  longer 
measured  by  the  fee  bill,  but  rests 
in  contract;  but  this  has  nothing  to 
do  with  the  reason  upon  which  the 
right  to  the  lien  is  founded.  The 
reason  why  he  should  have  a  lien, 
is,  to  use  the  language  of  Lord  Ken- 
yon  in  Reed  v.  Dupper,  'that  the 
party  should  not  run  away  with  the 
fruits  of  the  cause,  without  satisfying 
the  legal  demands  of  his  attorney, 
by  whose  industry,  and  in  many  in- 
stances, by  whose  expense,  these 
fruits  were  obtained.'  And  the 
manner  in  which  the  value  of  his 
services  shall  be  ascertained, 
whether  regulated  and  fixed  by 
statute,  or  left  to  the  private  agree- 
ment of  parties,  is  entirely  inde- 
pendent of  the  right  to  the  lien. 
The  learned  justice  seems  to  think 
that,  as  the  rate  of  compensation 
between  attorney  and  client  was 
fixed  by  positive  provision  of  law, 
the  lien  of  the  attorney  can  no 
longer  exist,  because  the  amount  or 
extent  of  it  is  no  longer  regulated 


by. statute.  The  fact  that  it  must 
now  be  ascertained  by  other  means  — 
by  proof  of  the  private  agreement 
of  the  parties,  or  by  proof  of  a 
quantum  meruit  —  seems  to  be  re- 
garded as  a  sufficient  reason  for 
supposing  that  a  right  has  been 
taken  away  that  in  no  wise  depend- 
ed upon  the  precise  amount  or 
value  of  the  service.  The  same  rea- 
soning would  apply  with  equal 
force  against  the  right  of  lien  in 
any  case  where  the  demand  was  un- 
liquidated. It  is  not  essential  to 
the  existence  of  a  lien  that  the 
amount  should  be  liquidated;  it 
may  exist  as  weU  in  respect  to  an 
unliquidated  demand  as  to  one  that 
is  liquidated  (Cross  on  Lien).  The 
tailor  who  repairs  a  garment,  has  a 
lien  upon  it  to  the  extent  of  the 
value  of  his  labor,  though  no  agree- 
ment has  been  made  as  to  the  price; 
so  may  the  attorney  have  a  hen 
upon  the  judgment  to  the  extent  of 
the  value  of  his  labor,  when  the 
parties  have  not  agreed  as  to  the 
rate  of  compensation." 

1  Harrington  v.  MacMorris,  5 
Taunt.  228. 

2  Ehrensperger  v.  Anderson,  3 
Exch.  148;  but  see  McLachlan  v. 
Evans,  1  Y.  &  J.  3S0;  Pollock  v. 
Calglazure,  Sneed  (Ky.),  2;  Sheehan 
V.  Dalrymple,  19  Mich.  239. 


MONEY.  321 

performed  by  payment,  unless  a  contrary  intention  appears; 
that  is,  a  contract  for  the  payment  within  the  United  States  of 
dollars  is  presumptively  payable  in  dollars  of  our  decimal  cur- 
rency. If  a  contract  be  made  here,  and  even  not  within  the 
law  merchant,  and  between  citizens  of  the  United  States,  and 
to  be  performed  here,  for  the  payment  of  a  sum  stated  in  the 
denominations  of  a  foreign  currency,  it  is  undoubtedly  to  be 
treated  as  a  money  contract,  the  same  as  if  made  and  to  be  per- 
formed in  the  country  where  such  currenc}^  is  the  legal  money.^ 
Debts  have  no  situs;  they  are  payable  everywhere;  and  in 
every  country  where  payment  may  be  either  tendered  or  de- 
manded, they  are  strictly  payable,  in  the  legal  currency  or  money 
of  that  country,  and  in  no  other  cm-rency,  unless  strictly  at  ma- 
turity. A  sterhng  debt  contracted  or  incurred  in  England,  a 
debt  payable  in  francs,  incurred  in  France,  or  a  contract  pay- 
able in  pistoles  entered  into  in  Spain,  when  sought  to  be  en- 
forced or  paid  in  the  United  States,  is  a  contract  for  an 
equivalent  amount,  payable  only  in  the  lawfid  money  of  the 
United  States.  The  very  currency  in  which  the  contract  by  its 
terms  was  payable,  if  tendered  in  this  country  after  maturity, 
would  be  no  legal  offer  of  payment ;  it  woidd  not  be  a  tender 
which  would  stop  interest. 

Contracts  made  abroad,  or  payable  in  foreign  currency,  are 
treated  as  money  contracts;  but  the  money  specified  therein,  if 
not  tendered  when  due,  is  no  longer  the  money  in  which  the 
damages  due  on  tlie  contract  would  be  computed,  except  within 
the  jurisdiction  where  such  money  is  the  lawful  cmTency. 

Bank  bills  and  other  paper  currency  circulate  as  money.  It 
is  not  strictly  such,  for  no  debtor  has  a  legal  right  to  discharge 
a  money  obhgation  with  such  currency,  unless  it  is  made  legal 
tender  by  law ;  the  creditor  may  refuse  to  receive  it ;  but  when 
it  is  paid  and  received,  it  is  paid  and  received  as  money.  The 
receipt  of  bank  bills,  dollar  for  doUar,  upon  a  debt,  is  not  con- 
ditional papnent,  depending  on  dihgence  of  the  payee  in  pre- 
senting the  bills  to  the  bank  and  obtaining  legal  tender  funds ; 

>  See  Mervine  t.  Sailor,  53  Pa.  St.      Kinike,    51  Pa.   St.   425;    Sears   v. 
189;    Christ    Church    Hospital     v.      Dewing,  14  Allen,  413. 
Fuechsel,  54  Pa.  St.  71;  Mather  v. 
Vol,  1  —  21 


322 


PECUNIAKT   EEPKESENTATIVE   OF   VALUE. 


nor  is  it  accord  and  satisfaction.^  Contracts  payable  in  currency 
or  in  funds,  qualified  by  any  term  which  imports  money,  is  a 
money  contract.  A  check  for  "  current  funds,"  calls  for  current 
money ;  par  funds,  money  circulating  without  discount.^  This 
term,  as  well  as  "  currenc}^,"  is  held  in  Ilhnois  to  exclude  depre- 
ciated paper  money.^  A  note  payable  in  "current  Florida 
money,"  is  payable  in  good  funds.*  "  Canada  currency "  is 
equivalent  to  lawful  money  of  Canada.* 

Effect  of  changes  in  the  value  of  money. —  The  amount 
due  by  contract  is  sometimes  subject  to  question  by  reason  of 


1  Solomon  v.  The  Bank  of  England, 
13  East,  130;  Pickard  v.  Bankes,  13 
East,  20;  Corbitt  v.  Bank  of  Smyrna, 
S  Harr.  235;  Ware  v.  Street,  2  Head, 
699;  Magee  v.  Carmack,  13  111.  289; 
Lightbody  v.  Ontario  Bank,  11 
Wend.  1;  S.  C.  13  id.  107;  Wain- 
wi-ight  V.  Webster,  11  Vt.  576;  Fogg 
V.  Sawyer,  9  N.  H.  865;  Frontier 
Bank  v.  Morse,  32  Me.  88;  W^estfall 
V.  Braley,  10  Ohio  St.  188;  Harley  v. 
Thornton,  2  Hill  (S.  C),  509.  In 
Maynard  v.  Newman,  1  Nev.  271, 
Beatty,  J.,  said:  "  Money  means  any- 
thing which  passes  cnrrent  as  the 
common  medium  of  exchange  and 
measure  of  value  for  other  articles, 
whether  it  be  the  biUs  of  private  or 
incorporated  banks,  government 
bills  of  credit,  treasury  notes  or 
pieces  of  coined  metal.  Money  is 
anytliing  which  by  law,  usage  or 
common  consent  becomes  a  general 
^medium  by  wliich  the  value  of  other 
commodities  is  measured  and  de- 
nominated. Paper  money  is  distin- 
guishable from  other  negotiable  pa- 
per, such  as  notes,  bills  of  exchange, 
etc.,  because  it  is  always,  after  once 
put  in  circulation,  payable  to  bearer, 
not  to  order;  because  it  is  made  to 
represent  convenient  amounts  for 
the  ordinary  transaction  of  business, 
is  printed  and  written  on  paper  not 


easily  worn  out,  and  therefore  capa- 
ble of  being  passed  from  hand  to 
hand  for  a  long  time  without  de- 
struction. By  general  consent,  it  is 
used  and  treated  as  money  and  not 
as  negotiable  paper.  If  one  in- 
dorses his  name  on  such  a  note,  he 
does  not  thereby  become  responsible 
for  the  insolvency  of  the  bank,  but 
merely  guaranties  the  note  is  not  a 
counterfeit.  Neither  the  courts  of 
law,  nor  the  community,  treat  such 
paper  as  negotiable  securities,  but  as 
money,  something  which  is  used  as 
a  general  representative  and  measure 
of  values." 

2  Marc  V.  Kupf  er,  34  111.  286.  That 
term  was  held  to  have  a  specific, 
legal  and  well  known  meaning;  that 
it  could  not  be  contradicted  or  ex- 
plained bj'  parol.  See  Moore  v.  Mor- 
ris, 20  111.  255.  In  Phoenix  Ins.  Co. 
V.  Allen,  11  Mich.  501,  it  was  held 
that  a  note  paynble  in  ' '  current 
funds,"  in  the  absence  of  all  evidence 
showing  that  anything  else  is  cur- 
rent at  the  place  of  payment,  must 
be  regarded  as  payable  only  in  such 
funds  as  ai"e  current  by  law. 

3  Springfield  M.  &  F.  Ins.  Co.  v. 
Tinclier,  30  111.  39;  Webster  v.  Pierce, 
35  lU.  158. 

•*  Williams  v.  Moselcy,  2  Fla.  304. 
5  Black  V.  Ward,  27  Mich.  191. 


MONEY.  323 

fluctuations  in  tlie  value  of  money,  in  which  the  contract  was 
made  payable.  These  fluctuations  may  be  caused  by  the  state 
debasing  the  coins  which  represented  that  money,  or  by 
arbitrary  changes  in  the  value  of  existing  denominations  of  the 
legal  currency ;  and  so  the  value  of  paper  money  will  rise  and 
fall  with  the  fluctuations  in  the  credit  of  its  maker.  Suppose  a 
contract  for  the  paj^ment  of  one  hundred  dollars  made  while 
the  present  decimal  system  is  in  force ;  and  while  that  contract 
is  pending  congress  revises  that  system  and  retains  a  dollar  as  a 
unit  of  value  representing  only  fifty  cents.  Uninfluenced  by  any 
provision  that  the  new  dollar  shaU  be  a  legal  tender  for  all 
debts,  at  their  nominal  value,  would  a  hundred  of  these  dollars 
discharge  tlie  principal  of  the  debt  under  the  supposed  con- 
tract? The  injustice  of  holding  the  aflirmative  is  apparent. 
The  new  dollars  would  not  be  those  of  the  contract ;  by  paying 
a  hundred  of  them  the  promisor  does  not  pay  the  value  which  he 
undertook  to  pay,  and  which  was  expressed  by  the  contract. 
He,  of  course,  would  be  entitled  to  pay  in  the  money  which 
was  lawful  and  current  when  the  contract  required  payment  to 
be  made;  but  as  the  word  doUar  is  but  a  representative  of 
value,  that  value  should  be  ascertained  by  the  legal  sense  of  the 
term  when  the  contract  was  made.  Though  the  parties  con- 
tracted with  a  knowledge  of  the  power  of  congress  to  make  the 
subsequent  changes,  it  does  not  follow  that  the  parties  impliedly 
agreed  that  the  value  stipulated  to  be  paid,  as  fitly  expressed  in. 
the  contract,  should  be  modified  by  an  arbitrary  change  in  the 
meaning  of  the  terms  which  had  been  employed  b}'  the  parties 
to  express  their  intention.  This  view  is  so  obviously  just  it  is 
a  matter  of  surprise  that  it  should  ever  have  been  questioned.^ 

iSee2  Daniellon  Neg.  Inst.  §1214;  money,   declaring  it    to  be    lawful 

Story's   Confl.    Laws,    §§  313,  313a.  currency   in   Ireland.     Of    this   de- 

The  case  of  Mixed  Moneys,  Davis,  based  coin  a  tender  was  made  in 

Eep.  28,  rests  on  a  contrary  view.     A  Dublin,  and  it  was  held  good.     In  a 

bond  was  given  for  "  £100  sterling  note  to  §  313a  of  Story's  Confl.  L.  it 

current  and  lawful  money  of  Eng-  is  said:  "The  court  do  not  seem  to  - 

land,"  to  be  paid  in  Dublin,  Ireland,  have  considered  that  the  true  value  ' 

Between  the  time  of  making  of  the  of  the  English  current  monev  miglit,  ' 

bond  and  its  becoming  due,  Queen  if  that  was  required  by  the  bond, 

Elizabeth  recalled  the  existing  cur-  have  been  paid  in  Irish   currency, 

rency  in  Ireland,  and  issued  a  new  tliough  debased,  by  adding  so  much 

debased     coinage      called      mixed  more  as  would  bring  it  to  the  par. 


324 


PECUlSnAET   EEPEESENTATIYE   OF    VALUE. 


When  a  bill  is  drawn  in  one  country  payable  in  another  in 
the   coin  of  the  latter,  the  value  of  which,  intermediate  the 


And  it  is  extremely  difficult  to  con- 
ceive how  a  payment  of  current  law- 
ful money  of  England  could  be 
interpreted  to  mean  current  or  law- 
ful money  of  Ireland,  when  the 
currency  of  each  kingdom  was  dif- 
ferent, and  the  royal  proclamation 
made  a  distinction  between  them, 
the  mixed  money  being  declaimed  the 
lawful  currency  of  Ireland  only. 
Perhaps  the  desire  to  yield  to  the 
royal  prerogative  of  the  queen  a 
submissive  obedience,  as  to  all  pay- 
ments in  Ireland,  may  account  for  a 
decision  so  little  consonant  with  the 
principles  of  law  in  modern  times. 
Sir  William  Grant,  quoting  Vinnius, 
in  Pilkinton  v.  Commissioner  of 
Claims,  2  Knapp,  18  to  21.  affirms 
the  better  doctrine.  '  He  (Vinnius) 
takes  the  distinction,  that  if,  be- 
tween the  time  of  contracting  the 
debt  and  the  time  of  its  payment, 
the  currency  of  the  country  is  de- 
preciated by  the  state,  that  is  to  say, 
lowered  in  its  inti'insic  goodness,  as 
if  there  were  a  greater  proportion  of 
alloy  put  into  a  guinea  or  a  shilling, 
the  debtor  should  not  liberate  him- 
self by  paying  the  nominal  amount 
of  his  debt  in  the  debased  money; 
that  is,  he  may  pay  in  the  debased 
money,  being  the  current  coin,  but 
he  must  pay  so  much  more  as  will 
make  it  equal  to  the  sum  he  bor- 
rowed.' But  he  says  (and  this 
seems  contradictoiy  of  the  fore- 
going) if  the  nominal  value  of 
the  cviiTency,  leaving  it  unadulter- 
ated, were  to  be  increased,  as  if 
they  were  to  make  the  guinea  pass 
for  30s.,  the  debtor  may  liberate 
himself  from  a  debt  of  £1  10s.  by 
paying  a  guinea,  although  he  bor- 
rowed the  guinea  when  it  was  but 
worth  21s."    And  the  case  of  Reyn- 


olds V.  Lyne's  Ex'r,  3  Bibb,  340,  is  in 
accord  with  that  principle.  A  con- 
tract was  made  when  a  dollar  was 
5s.  Qd.  for  the  payment  of  a  sum  at  a 
future  day  on  the  performance  of  a 
concurrent  act  of  the  payee.  Be- 
fore the  money  became  payable,  the 
state  where  the  contract  was  made 
enhanced  the  value  of  the  dollar  to 
6s.  Subsequently  payments  were 
made,  and  a  dispute  arose  whether 
the  money  paid  should  be  estimated 
at  the  rate  of  currency  when  the 
money  was  paid,  or  when  the  con- 
tract was  made.  Finally,  the  ob- 
ligation in  question  was  given  for  a 
balance  of  the  original  debt  remain- 
ing by  estimating  the  payment  ac- 
cording to  the  value  of  a  doUar  at 
the  date  of  the  contract,  viz. ,  5s.  9d. , 
for  which  judgment  at  law  had 
been  rendered.  The  question  arose 
on  a  bill  in  equity  for  relief  on  the 
ground  of  mistake  against  that  ob- 
ligation and  the  judgment  founded 
upon  it.  Judge  Owsley  said: 
"When  the  original  obligation 
.  .  .  was  made,  the  legislature  of 
Virginia  had  the  power  to  regulate 
the  currency  of  their  coin  w^ithia 
the  limits  of  that  state;  and  as  the 
contract  .  .  .  was  made  within 
the  limits  of  that  state,  the  prom- 
ise ..  .  to  pay  in  current  money 
of  Virginia  must  have  been  agreed 
on  with  a  knowledge  of  the  state 
sovereignty,  and  subject  to  its  con- 
ti'ol  in  regulating  the  currency.  We 
are  of  opinion,  therefore,  that  the 
original  obligation  .  .  .  might 
have  been  satisfied  by  payment  in 
current  money  at  its  value  when 
Lyne  became  entitled  to  demand 
payment;"  and  that  relief  was 
granted  against  the  judgment.  See 
Pong  V.  Le  Lindsay,  Dyer,  822. 


MONEY.  325 

drawing  and  payment,  is  reduced  by  the  government,  it  has 
been  held  that  payment  should  be  made  according  to  the  value 
of  the  money  at  the  time  the  bill  was  drawn.'  The  common 
law  cannot  be  deemed  settled  on  this  point ;  nor  are  the  writers 
on  the  civil  law  in  accord  upon  it.  The  opposite  view  is  appar- 
ently based  on  the  assumption  that  in  money  we  do  not  regard 
the  coins  which  constitute  it,  but  only  the  value  which  the 
sovereign  has  been  pleased  that  they  shall  signify .^  But  coins 
have,  in  the  world's  exchanges,  an  intrinsic  value  which  no 
sovereign  can  affect  by  arbitrary  regulation.  And  if  by  a  regu- 
lation concurrently  adopted  by  all  nations,  the  coins  of  each 
were  uniformly  either  debased  or  enhanced  in  value  without  a 
corresponding  change  of  their  intrinsic  value,  the  change  would 
be  immediately  followed  by  an  equal  advance  or  decline  in  the 
price  of  property.  If  the  change  were  made  in  the  value  of 
the  coins  of  one  country  only,  it  would  be  at  once  succeeded  by 
a  fluctuation  in  prices  of  property  measured  by  them,  sho^Aang 
that  their  purchasing  power  had  undergone  no  essential  modifi- 
cation ;  and  the  same  conclusion  would  result  from  comparison 
of  the  value  of  such  coins  with  the  coined  money  of  other 
nations.  "When  a  contract  is  made  for  the  payment  at  a  future 
day  of  a  given  amount  of  money  in  specified  legal  denomina- 
tions, having  at  the  date  of  the  contract  a  fixed  legal  value,  are 
not  the  intention  and  legal  obligation  of  the  parties  to  be  ascer- 
tained by  the  import  at  that  time  of  the  terms  used?  Un- 
doubtedly a  debt  created  by  contract  which  can  be  paid  with 
money  can  be  satisfied  by  whatever  medium  of  payment  is  legal 
tender  at  the  time  it  is  due  and  payable,'  if  paid  then ;  and  it 
may  be  added,  that  at  all  times  afterwards,  it  will  be  solvable 
in  any  money  which  for  the  time  being  is  legal  tender  at  the 
place  where  payment  may  be  demanded  or  tendered,  whether  it 
be  the  place  of  contract  or  elsewhere.^ 

The  legal  currency  which  may  be  applicable  at  the  ]ilace  of 
contract  when  the  debt  becomes  due,  or  is  actually  demanded, 

1  La  Costa  v.  Cole,  Skin.  272;  Chitty  3  Higgins  v.  R.  R.  &  A.  W.  &  M. 
on  Bills,  *399.  See  Anon.  1  Hayw.  Co.  27  Cal.  158;  Wilson  v.  Morgan,  4 
Law  and  Eq.  by  Batt.  405.  Robt.  58. 

^  See  Stoiy  Conf.  L.  §  313&.  ^  Dowans  v.  Dowans,  2  Wash.  (Va.) 

26. 


326  PECUNIARY   KEPKESENTATIVE   OF    VALUE. 

or  sought  by  tender  to  be  paid,  may  be  as  unlike  that  mentioned 
in  the  contract,  as  thougli  the  demand  of  payment  or  tender 
were  made  in  anotlier  country.  Upon  general  principles,  and 
upon  legal  analogies,  the  value  should  be  ascertained  by  the 
legal  reading  of  the  contract  at  the  time  that  it  was  made,  and 
this  is  payable  in  any  currency  which  is  legal  tender  when  pay- 
ment is  actually  made.^  If  when  and  where  payment  is  made, 
the  currency  consists  of  coins  of  the  same  or  a  different  name, 
and  represent  different  values  from  those  named  in  the  contract, 
or  represent  the  same  values,  but  have  been  either  debased  or 
the  contrary,  the  par  should  be  ascertained  of  the  money  of  the 
contract,  and  that  par  should  be  the  measure  of  the  amount 
due.  Tliis  question  may  be  precluded  by  the  new  curi'ency,  or 
that  which  is  offered  in  payment  being  made  by  law  a  lawful 
tender  for  the  particular  debt  at  the  nominal  value  of  such  cur- 
rency. Under  such  legislation,  these  general  views  have  but  a 
subordinate  influence ;  the  practical  question  then  being  what 
is  the  effect  of  the  statute. 

Under  the  Legal  Tender  Law  of  1863  the  value  of  the  dollar  is 
not  changed,  but  a  new  legal  representative  of  it  is  introduced 
as  a,  medium  of  pajmient.  Paper  money  in  the  form  of  the 
government's  promise  to  pay  was  issued  and  declared  to  be 
legal  tender  for  all  debts,  public  and  private,  with  certain  ex- 
ceptions of  the  former.  The  coinage,  which  had  previously 
been  the  exclusive  legal  tender,  was,  however,  still  retained  as 
money.  During  the  first  years  after  the  issue  of  this  paper 
currency,  owing  to  the  situation  of  the  countr\^,  and  doubtless 
to  the  circumstance  that  no  time  was  fixed  for  its  redemption 
in  specie,  it  became  depreciated ;  that  is,  gold  and  silver  money 
was  largely  at  a  premium.  As  greenbacks  were  a  legal  tender 
for  all  debts,  payable  in  money  generally,  they  became,  of  course, 
the  ordinary  currency,  and  were  thereby  made  the  legal,  as 
they  were  the  nominal,  equivalent,  doUar  for  dollar,  for  the  pay- 
ment not  only  of  all  subsequent,  but  also  all  antecedent  debts.- 

1  Bronson  v.  Rodes,  7  Wall.  229.  46  Ind.  405;  Reynolds  v.  The  Bank, 

2  Legal  Tender  Cases,  12  Wall.  457;  etc.  18  id.  467;  Thayer  t.  Hodges,  23 
Dooley  v.  Smith,  13  id.  604;  Bigler  id.  141;  Brown  t.  Welch,  26  id.  116; 
V.Waller,  14  id.  297;  Railroad  Co.  v.  Bank  v.  Burton,  27  id.  426;  McTn- 
Johnson,  id.  195;  Bowen  v.  Clark,  hill  v.  Odill,   62  111.   159;  Black  v. 


MONET. 


527 


The  difference  in  market  value  could  not  be  recognized  when 
the  paper  dollar  was  offered  in  payment  of  any  debts  to  which 
it  was  applicable  by  law.  The  courts  say :  "  A  court  cannot 
say  judicially  that  one  kind  of  money  made  a  legal  tender  is  of 
greater  or  less  value  than  another ;  nor  can  evidence  be  received 
to  prove  a  difference."  ^  The  legal  equivalence  in  value  of 
coined  money  and  greenbacks  is  more  absolutely  asserted  by 
the  early  than  by  the  later  decisions.-  In  an  action  for  specific 
performance  the  plaintiff  had  a  verdict ;  and  in  September,  1860, 
deposited  the  purchase  money  in  court  in  gold  to  be  taken  out 
by  the  defendant  on  filing  his  deed.  The  prothonotary  depos- 
ited the  money  with  reliable  bankers,  to  his  own  credit.  They 
emplo3^ed  the  money  as  they  did  other  deposits,  without  profit 
as  coin ;  it  was  always  subject  to  the  prothonotary 's  draft.  The 
defendant  filed  his  deed  after  the  passage  of  the  legal  tender 
law,  and  the  prothonotary  offered  to  pay  him  the  money  in 


Lusk,  69  id.  70;  Morrow  v.  Rainy, 
58  id,  357;  Chamberlain  v.  Blair,  58 
id.  385;  Longworth  v  Mitchell,  26 
Ohio  St.  334;  Bullock  v.  Davis,  38 
Cal.  248. 

'  Carpentier  v.  Atherton,  25  Cal. 
564;  Reese  v.  Steams,  29  id.  273; 
Spencer  v.  Prindle,  28  id.  276;  Poett 
V.  Stearnes,  31  id.  78. 

2  In  Buchegger  V.  Shultz,  13  Mich. 
430  (1865),  it  was  held  that  the  law 
of  congress  making  trea;5ury  notes 
a  legal  tender  in  payment  of  j)rivate 
debts  was  not  designed  to  confer  a 
personal  privilege  upon  debtors,  but 
is  based  upon  principles  of  state 
policy;  and  an  agreement  between 
parties  waiving  its  provisions,  and 
requiring  a  debt  to  be  paid  in  gold, 
is  illegal,  and  cannot  be  sustained. 
See  Linn  v.  Minor,  4  Nev.  462  (1868). 

In  Kempton  v.  Brownson,  45  Barb. 
618,  Daniels,  J.,  said:  "  The  law  has 
impressed  them  (treasury'  notes)  with 
a  legal  value  precisely  equal  to  that 
of  gold  and  silver  of  the  same  de- 
nominations for  the  purpose  of  pay- 
ing individual  debts  with  them,  and 
it  cannot  permit  a  discrimination 


against  them  in  favor  of  gold  and 
silver,  without  allowing  its  authority 
to  be  substantially  aimulled.  How- 
ever the  fact  may  be  as  to  their 
value  as  a  mere  commodity,  for  the 
j)uri)Ose  of  paying  individual  debts 
a  treasury  note  is  as  completely  a 
legal  dollar  as  a  piece  of  metal  of  a 
certain  weight  and  quality,  im- 
pressed as  the  law  directs,  is  a  legal 
dollar.  The  one  is  no  more  so  than 
the  other  for  those  purposes  that  the 
laws  have  declared  them  to  be  of 
equal  value.  Where  these  laws  are 
supreme,  tliat  value  must  be  ob- 
served and  secured  by  courts  of 
justice.  If  the  obligation  in  this 
case  had  been  such  as  required  the 
delivery  of  one  thousand  eight 
hundred  gold  dollars,  and  not  as  it 
was,  one  thousand  eight  hundred 
dollars  in  gold  or  silver  coin,  its  con- 
struction must  have  been  different. 
Further,  it  would  have  been  in  no 
sense  a  debt  within  the  contempla- 
tion of  these  statutes,  and  could  not 
be  affected  by  their  provisions  de- 
claring treasury  notes  a  lawful  ten- 
der for  the  payment  of  debts."  Such 


328  PECUNlAliY   KEPEESENTATIVE   OF   VALUE. 

court  in  legal  tenders,  which  he  refused  and  brought  trover  for 
the  gold ;  held,  that  he  could  not  recover.^ 

The  earlier  cases  proceeded  on  the  construction  that  ^'^  all 
debts''''  in  the  Legal  Tender  Law  of  1862,  included  all  pecuniary 
liabilities,  whether  originating  in  contracts  expressly  to  pay  in 
gold  and  silver,  or  in  "  dollars  "  generally.  But  the  subject  re- 
ceived a  different  treatment  when  it  came  to  be  considered  in 
the  national  supreme  court.  That  court  said  congress  must 
have  had  in  contemplation  debts  originating  in  contract,  or  de- 
mands carried  into  judgment,  and  only  debts  of  this  character. 
And  the  term  did  not  include  taxes  levied  under  state  laws ;  ^ 
nor  obligations  payable  expressly  in  coined  money.  Keferring 
to  a  tender  of  United  States  notes  in  1865  on  a  debt  contracted 
in  1851,  payable  by  the  language  of  the  contract  in  gold  and 
silver  coin,  Chase,  C  J.,  said  there  were  two  descriptions  of 
money  in  use  at  the  time  the  tender  was  made,  both  authorized 
by  law,  and  both  made  legal  tender  in  payments.  The  statute 
denomination  of  both  descriptions  was  dollars ;  but  they  were 
essentially  unlike  in  nature.  The  coined  dollar  was  a  piece  of 
gold  or  silver  of  a  prescribed  degree  of  purity,  weighing  a  pre- 
scribed number  of  grains.  The  note  dollar  was  a  promise  to 
pay  a  coined  dollar ;  but  it  was  not  a  promise  to  pay  on  demand, 
nor  at  any  fixed  time,  nor  was  it  in  fact  convertible  into  a  coined 
dollar.  It  was  impossible,  in  the  nature  of  things,  that  these  two 
dollars  should  be  actual  equivalents  of  each  other,  nor  was  there 
anything  in  the  currency  acts  purporting  to  make  them  such.^ 

was  the  general  current  of  decisions;  299;  Galliano  v.  Pierre,  18  La.  Ann. 

namely,  that  all  debts,  whether  pay-  10;  Munter  v.  Faber,  50  Ala.  283. 

able  in  terms  in  gold  and  silver  as  i  Aurentz  v.  Porter,  56  Pa.  St.  115. 

money,  or  in  dollars  generally,  were  -'Lane  Co.  v.  Oregon,  7  Wall.  71. 

solvable  in  greenbacks.     Shallenber-  ^Bronson  v.  Rodes,   7  Wall.  229; 

ger  V.  Brinton,  52  Pa.  St.  1;  Mervin  v.  Knox  v.  Lee,  12  Wall.  457.     In  The 

Sailer,    52    Pa.  St.    9;    Laughlin  v.  Vaughan  and  Telegraph,   14  Wall. 

Harvey,  52  Pa.  St.  9;  Appel  v.  Wa-  258,  which  was  a  collision  case,  there 

terman,  38  Mo.   194;  Riddlesbarger  was  a  right  to  recover  for  the  loss  of 

v.  McDaniel,  id.  138;  Wilson  v.  Mor-  property  according  to  its  value  at 

gan,  4  Robt.  58;  S.  C.  1  Abb.  Pr.  N.  the    time    and    place  of  shipment. 

S.  174;  30  How.  Pr.  386;  Murray  v.  The  place  of  shipment  being  a  place 

Gale,  5  Abb.  Pr.  N.  S.  236;  S.  C.  52  in  Canada,  the  value  in  dollars  was 

Barb.  427;  Whetstone  v.  Colly,  36111.  stated  in  the  currency  of   Canada, 

328;   Humphrey  v.  Clement,  44  111.  which  was  equivalent  to  the  gold 


MONEY. 


529 


currency  of  the  United  States,  but 
being  stated  in  dollars,  the  district 
court  refused  to  recognize  any  diffei'- 
ence  between  the  value  of  a  dollar 
of  that  currency  and  the  dollar  of 
the  currency  in  which  the  judgment 
of  the  court  would  be  payable;  in 
other  words,  would  allow  nothing  to 
be  added  to  the  amount  stated  in 
dollars  of  Canada  currency,  to  give 
the  equivalent  when  paid  in  legal 
tender  notes  —  holding  that  the  loss 
in  this  way  was  an  incident  of  the 
suit  in  the  forum  where  it  was 
brought,  and  was  unavoidable.  In 
the  circuit  coui't,  the  same  rule  of 
damages  was  applied,  but  the  decree 
gave  the  value  of  the  Canada  cur- 
rency in  legal  tender  notes.  "  These 
notes,"  saidSwayne,  J.,  "  have  since 
largely  appreciated,  so  that  Avhile 
the  libellants  would,  under  the  de- 
cree of  the  district  court,  if  it  had 
been  paid  when  rendered,  have  re- 
ceived much  less  than  the  estimated 
value  of  the  barley,  they  will  now, 
if  the  circuit  court  be  affirmed,  re- 
ceive much  more.  .  .  .  Upon 
the  rule  of  damages  applied  by  both 
courts  as  respects  the  kind  of  cur- 
rency in  which  the  value  of  the  bar- 
ley ■was  estimated,  the  libellants 
were  entitled,  on  the  plainest  princi- 
ples of  justice,  to  be  paid  in  specie 
or  its  equivalent.  The  hardship  aris- 
ing from  the  decree  before  us  is  due 
entirely  to  the  delay  in  its  payment 
which  has  since  occurred,  and  the 
change  which  time  and  circunastan- 
ces  have  wrought  in  the  value  of  the 
legal  tender  currency.  The  decree 
was  right  when  rendered,  and  being 
so,  cannot  now  be  disturbed."  A 
minority  of  the  court  dissented,  on 
the  ground  that  the  original  decree 
should  have  been  rendered  for  the 
Canada  value  in  gold,  to  avoid  the 
loss  incident  to  the  fluctuations  in 
the  value  of  greenbacks.     See  Ed- 


mondson  v.  Hyde,   2  Sawyer,   205; 
Kellogg  V.  Sweeny,  46  N.  Y.  291. 

In  Simpkins  v.  Low,  54  N.  Y.  179, 
it  was  held  that  the  legal  tender  acts 
of  congress  relate  to  the  effect  of  the 
notes  issued  thereunder  as  a  tender 
in  the  payment  of  debts  arising  on 
conti'act;  they  do  not  forbid  the  rec- 
ognition in  other  relations  of  the 
difference  between  coin  and  cur- 
rency. The  action  was  brought  for 
the  conversion  of  certain  bonds  is- 
sued by  a  California  comi^any,  and 
though  not  in  terms  payable  in  gold, 
still  as  they  were,  by  the  custom  of 
business,  treated  as  such,  recovery 
was  permitted  on  a  gold  basis.  John- 
son, C,  said:  "  In  the  next  place  we 
are  met  by  the  fact  that  the  bonds 
involved  might  have  been  dis- 
charged by  the  debtor  to  the  holder 
in  currency,  by  the  tender  and  de- 
livery in  payment  of  the  number  of 
dollars  they  called  for  in  legal  tender 
notes.  And  the  question  is,  does 
that  fact  conclude  the  plaintifTs  in 
this  suit.  Between  them  and  the 
defendant,  the  question  is  not  one 
between  debtor  and  creditor.  The 
bonds  were  chattels,  and  the  law 
does  not  fix  the  vfdue  of  chattels.  It 
certainly  does  not  forbid  their  pos- 
sessing whatever  money  value  is 
shown,  in  fact,  to  have  been  j)os- 
sessed  by  them.  It  is  time  that  these 
chattels  expressed  an  engagement 
to  pay  a  certain  number  of  dollars, 
and  that  this  engagement  was  capa- 
ble of  being  extinguished  as  well  by 
paper  dollars,  as  by  dollars  in  coin. 
Although  this  was  the  legal  conse- 
quence of  the  legal  tender  acts,  yet 
in  the  supreme  court  of  the  United 
States,  judicial  notice  was  taken  of 
the  fact  that  in  the  Pacific  states,  in 
respect  to  contracts,  the  constitu- 
tional currency  continued  in  use, 
notwithstanding  these  laws  (12  Wall. 
678).     It  is  indisputable,  in  fact,  that 


330 


pecthstiaky  eepeesentative  of  value. 


expectation  of  payment  in  coin, 
founded  on  the  usual  mode  of  action 
in  particular  communities,  upon  the 
sense  of  moral  obligation,  upon  gen- 
eral and  repeated  experience  in  sim- 
ilar cases,  may  rise  to  so  high  a  de- 
gree of  moral  certainty  as  to  make 
such  securities  esteemed  to  be  equal 
in  value  to  those  upon  which  coin 
may  be  lawfully  demanded  and  ex- 
acted. These  considerations  go  to 
fix  a  market  value  where  there  is 
one.  In  the  absence  of  an  actual 
market,  I  know  no  reason  why  they 
may  not  be  considered  by  any  tri- 
bunal charged  with  the  duty  of  ad- 
justing men's  rights,  in  respect  to 
securities  of  such  a  nature.  Why 
should  a  court  be  the  only  place 
where  men  most  affect  an  ignorance 
of  what  all  men  know?  Were  it 
necessary,  I  should  be  willing  to 
give  my  judgment  that  upon  these 
grounds  alone,  the  question  is  open 
to  the  consideration  of  the  jury  to 
estimate  the  value  of  these  securi- 
ties. But  there  is  affirmative  evi- 
dence of  value  equal  to  or  closely 
approximating  the  coin  rate,  in  the 
fact  testified  to,  that  money  could  be 
borrowed  upon  these  bonds  as  col- 
lateral at  i5ar  in  coin." 

In  Luling  v.  The  Atlantic  Mutual 
Insurance  Company,  30  How.  69,  it 
was  held  that  where  there  is  a  spe- 
cific agreement  made  between  any 
policy-holders  of  a  mutual  insurance 
company  and  the  company,  that  the 
premiums  of  the  former  shall  be 
paid  in  gold,  and  the  losses  shall  be 
paid  by  the  latter  in  gold,  the  com- 
pany, on  declaring  its  dividends,  are 
bound  to  allow  such  policy-holders 
a  certificate  of  their  share  of  the 
profits  in  accordance  with  a  gold 
standard  as  compared  with  cur- 
rency. A  notice  issued  by  the  com- 
pany to  the  efi'ect  that  the  dealers 
making  insurances  payable  in  gold 


were  to  participate  with  others  in 
the  earnings,  and  that  these  would 
be  computed  and  made  payable  in 
currency,  and  the  delivery  by  the 
company,  and  acceptance  of  the  cer- 
tificates of  such  earnings  by  such 
policy-holders,  under  said  notice, 
does  not  affect  the  legal  bearing  of 
the  contract,  nor  make  the  certifi- 
cates a  bar  to  an  action  by  the  policy- 
holders against  the  company  to  cor- 
rect the  account  upon  which  these 
were  based  and  for  a  i^roper  read- 
justment. 

Tlie  certificates  were  good  to  the 
extent  which  they  provided  for 
only.  Baltimore  &  O.  R.  R.  Co.  v. 
State,  36  Md.  336;  Bronson  v.  Rodes, 
36  How.  Pr.  365;  Bank  of  Prince  E. 
I.  V.  TurnbuU,  35  How.  Pr.  8;  Lane 
V.  Gluckauf,  28  Cal.  288;  Velhac  v. 
Biven,  28  id.  410;  Rankin  v.  De- 
mott,  61  Pa.  St.  263. 

A  debt  payable  "  in  gold  or  its 
equivalent  in  lawful  money  of  the 
U.  S."  requires  payment  to  be  made 
at  the  commercial  value  of  gold 
when  due.  Baker's  App.  59  Pa.  St. 
313.  The  defendants,  in  1866,  bought 
goods  from  plaintiffs,  ' '  Liverpool 
test,  monthly  shipments  from  Liv- 
erpool to  Philadelphia,  ...  at 
three  and  one-fourth  cents  per 
pound,  cash,  gold  coin,  on  vessel  at 
Philadelphia,"  held  to  be  payable  in 
gold  or  its  equivalent.  Parties  can 
take  themselves  out  of  the  operation 
of  the  Legal  Tender  Law,  after  its 
passage,  by  contracting  for  payment 
in  coin  alone.  Frank  v.  Calhomi, 
59  Pa.  St..  381;  see  Governor,  Opin- 
ions in  Response  to,  49  Mo.  216; 
The  EmUy  B.  Sonder,  8  Blatchf. 
337. 

In  Glass  v.  Abbott,  6  Bush,  622,  it 
was  held  that  the  difference  between 
gold  and  greenbacks  in  value  is  suffi- 
cient to  make  usuiy,  where  there 
woiild  be  none  if  no  such  difference 


MONEY. 


331 


existed;  but  see  Eeinback  v.  Crab- 
tree,  77  111.  182. 

Money  had  and  received  main- 
tainable for  proceeds  of  a  gold  bond 
sold,  and  recovery  may  be  bad  of 
such  proceeds  at  its  value  in  paper 
money.  Hancock  v.  Franklin  Ins. 
Co.  114  Mass.  155. 

In  Carpenter  v.  Atlierton,  28  How. 
Pr.  203,  a  California  contract,  pay- 
able in  gold,  was  in  question;  being 
such  as  under  the  statutes  of  that 
state,  called  the  Specific  Contract 
Act,  would  be  there  enforced  by  re- 
quiring payment  in  gold,  it  was  held 
proper  to  decree  in  New  York  that 
it  be  specifically  performed,  and  a 
tender  of  greenbacks  was  held  no 
defense.  This  remedy  was  afforded 
while  the  courts  of  the  latter  state 
held  that  legal  tender  notes  were 
applicable  to  debts  payable  expressly 
in  coined  money.  But  in  Massa- 
chusetts the  courts  held  that  the 
benefits  of  the  California  Specific 
Contract  Act  could  not  be  allowed. 
Tufts  V.  Plymouth  Gold  M.  Co.  14 
Allen,  407. 

In  Cook  V.  Davis,  53  N.  Y.  318,  it 
was  held  that  a  contract  to  deliver 
or  receive  either  of  the  two  recog- 
nized kinds  of  currency  at  a  price 
expressed  in  dollars  and  fractions  of 
a  dollar,  or  at  a  specified  percentage, 
is  to  be  construed  as  meaning  that 
the  price  is  payable  in  the  other  cur- 
rency. The  defendant  contracted  to 
deUver  to  the  plaintiff's  assignor, 
"  $10,000  current  funds  of  the  United 
States  "  at  fifteen  cents  on  the  dollar 
ten  nionths  after  date.  It  was  held 
that  the  contract  was  to  deliver 
§10,000  legal  tender  notes  for  $1,500 
in  coin;  that  the  contract  was  valid, 
and  for  a  breach  thei'eol;  the  defend- 
ant was  hable.  The  contract  was 
so  construed,  because  otlierwise  it 
would  be  insensible.  Rapallo,  J.,  said: 
''It  is  not  to  be  supposed  that  ra- 


tional men  would  contract  for  the 
dehvery  of  a  given  amount  of  cur- 
rent coin  or  paper  currency  on 
consideration  of  receiving  a  lesser 
amount  of  the  same  coin  or  paper. 
.  .  .  The  meaning  of  the  contract 
under  consideration  cannot  be  mis- 
understood when  read  in  the  hght  of 
the  public  events  of  the  time.  The 
parties  by  a  deliberate  agreement  in 
writing,  signed  by  both  of  them, 
mutually  agreed,  one  that  he  would 
deliver,  and  the  other  that  he  woiild 
receive,  $10,000  of  current  funds  of 
the  United  States  at  fifteen  cents  on 
the  dollar  in  ten  months  after  the 
date  of  the  contract.  The  term 
'  current  funds  of  the  United 
States,'  clearly  describes  those  notes 
which  had  been  issued  by  the  gov- 
ernment to  meet  the  emergencies  of 
war,  and  wliich  congi'ess  had  sought 
to  assimilate  to  money  by  constitut- 
ing them  a  legal  tender  in  payment 
of  debts,  and  were  generally  known 
as  United  States  currency.  That  the 
percentage  agreed  to  be  paid  there- 
for by  the  plaintiff  was  to  be  pay- 
able in  coin,  is  as  clear  as  if  stated  in. 
those  words.  .  .  .  The  defend- 
ant when  entering  into  it  was  doubt- 
less wanting  in  confidence  in  the 
ability  of  the  government  to  main- 
tain itself  in  the  struggle  in  which 
it  was  then  engaged,  and  expected 
that  the  paper  currency  Avould,  in. 
the  course  of  ten  months,  dechne  in 
value  to  such  a  degree  that  it  could 
be  obtained  at  a  rate  of  less  than 
fifteen  per  cent,  in  coin.  Had  his 
expectations  been  realized,  he  would 
have  been  entitled  to  demand,  and 
it  is  to  be  presumed  that  he  would 
have  demanded  of  the  plaintiff 
$1,500  in  coin,  on  tendering  to  him 
$10,000  of  United  States  currency. 
The  result  having  been  different, 
and  the  currency  which  he  con- 
tracted to  deUver  having  increased 


332 


PECUNIAKT   EEPKESENTATrVE   OF   VALUE. 


instead  of  diminishing  in  its  value 
relatively  to  the  coin,  it  is  but  just 
that  he  should  bear  the  ensuing  loss. 
In  the  absence  of  any  law  px'ohibit- 
ing  sucli  contracts,  they  must  be  en- 
forced like  other  executory  contracts 
for  the  dehvery  of  goods  or  stocks." 
The  court  below  construed  the  prom- 
ise of  15  per  cent,  as  payable  also 
in  legal  tenders,  and  non-suited  the 
plaintiff,  on  the  ground  that  the  con- 
tract was  void  for  want  of  consider- 
ation. Smith  V.  McKinney,  23  Ohio 
St.  200.  See  also  Coldwell  v.  Craig, 
22Gratt.  340;  Turpinv  Slodd'sEx'r, 
23  id.  238. 

Instate  V.  Knittschnett,  4  Nev.  178 
(1868),  Beatty,  C.  J.,  thus  discusses 
the    subject    of    the    comparative 
value  of    treasury  notes  and  coin: 
"As  long  as  three  dollars  in  gold  Avill 
buy  as  much  as  four  in  paper,  it 
will  be  useless  to  say  to  persons  pos- 
sessing common  sense  that  the  two 
things  are  equal,  or  that  courts  can- 
not     distinguish     between     them. 
There  seems  to  be  a  sort  of  vague 
notion  that  because  the  government 
has  made  paper  money  a  legal  ten- 
der,  it  has  attempted  to  make  it 
equal  in  value  to  gold.     But  this  is 
not  so.     If    paper  dollars  were  as 
valuable  as  gold  dollars  there  would 
be  no  necessity  of  making  them  a 
legal   tender.     People   would    take 
them  for  debts,   without  any  law 
compelling    them    to    do    so.     One 
great  reason  for  making  paper  a  le- 
gal tender  w^as  the  great  rise  in  the 
price   of    gold    as    compared    with 
other  articles.     If  the  government 
had  not  made  paper  a  legal  tender, 
gold,  under  the  panic  and  increased 
demand  caused  by  the  war,  would 
have  risen  greatly  in  value  and  the 
whole  debtor  class  of    the    nation 
would  liave  been  ruined.     The  man 
who,  before  the  war,  had  purchased 
a  tract  of   land    for   ,flO,000,  paid 


$9,000  down,  and  given  a  mortgage 
for  only  $1,000,  would,  under  the 
joint    effects   of   an   increased   de- 
mand for  coin  and  a  panic  in  the 
money  market,  have  found  himseK 
unable  to  sell  the  whole  for  enough 
to  pay  the    $1,000    mortgage.     AH 
civilized  nations  among  whom  the 
use  of  bank  paper  has  been  known, 
have  occasionally  been  compelled  to 
resort  to  some  measure  of  this  kind 
for  the  relief  of  the  debtor  classes. 
But  making  paper  money  a  legal 
tender  for  debts  was  not  making  it 
of  the  same  value  as  gold,  and  no- 
body ever  yet  believed  it  covdd  be 
as  valuable  as  gold  until  it  was  at 
the  j)leasure  of  the  holder  converti- 
ble   into    gold.     The    difference   in 
value  exists.     It  is  recognized    by 
the  general  government  in  various 
ways,  and  all  courts  and  legislatures 
must  also  recognize  and  act  on  the 
existing  state  of  things.     Suppose  A 
has  100  bushels  of  wheat,   and  B, 
without  authority,  converts  it  to  his 
own  use.     A  sues  for  the  wheat,  and 
proves  by  two  witnesses  the  owner- 
ship in  himself,  the  conversion  by  B, 
and  that  the  wheat  was  worth  $2.80 
per  bushel,  or  $280  for  the  hundred 
bushels.      B     introduces     ten    wit- 
nesses, who  prove  that  the  wheat 
was  only  worth  $2.00  per  bushel; 
can  it  be  doubted  for  a  moment  that 
A  would  be  allowed  to  cross-exam- 
ine B's  witnesses  to  show  that  the 
reason  of  the  discrepancies  in  valu- 
ation   was    that    defendant's    wit- 
nesses valued  the  wheat    in    coin, 
whilst  plaintiff's  had  valued  it  in 
paper  currency?     And  would  not 
the  court  in  such  case  instruct  the 
jury  that  they  must  take  notice  of 
the  difference  in  value  of  the  two 
kinds  of  currency,   and  assess  the 
damages  on  a  paper  basis,  because 
the  defendant  would,  as  a  matter  of 
course,    discharge   whatever   judg- 


MONET. 


333 


Except  for  the  pa}- ment  of  debts,  in  tlie  sense  of  the  Legal 
Tender  Law,  there  is  no  conckisive  presumption  that  the  two 
currencies  are  of  equal  value.  Parties  may  by  their  contracts 
recognize  not  only  the  actual  but  any  esthnated  difference,  incur 
obhgations  on  the  basis  of  it  as  a  consideration ;  ^  obtain  dam- 
ages for  torts  in  respect  to  it,  or  recover  for  the  loss  of  it  as  an 
element  of  damage ;  ^  and  by  that  standard  where  there  have 
been  dealings  on  a  gold  basis  resulting  in  an  indebtedness,^  or 
an  indebtedness  payable  in  a  foreign  coin  currency.*  And  to 
ensure  the  full  benefit  of  the  gold  value  of  the  debt  or  liability, 
judgment  in  coined  money  is  authorized  and  required  to  be 
rendered.^ 

Where  there  are  fluctuations  in  the  value  of  the  money  of 
account,  or  of  the  currency  in  which  the  commercial  business 
of  a  countr}''  is  transacted,  allowances  have  sometimes  been 
made.  These  fluctuations  have  been  very  great,  and  are  always 
hable  to  occur  when  the  currency  is  paper  money.  A  promisor 
has  a  right  to  pay  in  the  currency  of  the  contract,  at  par,  al- 


ment  was  given  against  him  in  that 
currency  which  was  most  easilj^  at- 
tained; or,  in  other  words,  the 
cheapest  in  the  market  ? 

' '  If  courts  failed  or  refused  to  no- 
tice tlie  difference  in  the  two  kinds 
of  currency,  it  would  in  many  in- 
stances result  in  damage  or  loss.  To 
take  notice  of  and  be  governed  by 
facts  as  they  exist  cannot  be  wrong. 
There  are  two  kinds  of  money  of 
unequal  value."  See  Fabbi-i  v. 
Kalbfleisch,  52  N.  Y.  28;  Kupfer  v. 
Bank  of  Galena,  34  El.  328;  Trebil- 
cock  V.  Wilson,  12  Wall.  687;  Peo- 
ple V.  Cook,  44  Cal.  638. 

iCook  V.  Davis,  53  N.  Y.  318; 
Smith  V.  McKenny,  22  Ohio  St.  200; 
Luling  V.  Atlantic  M.  Ins.  Co.  30 
How.  Pr.  69. 

2Simpkins  y.  Low,  54  N.  Y.  179; 
KeUogg  V.  Sweeney,  46  N.  Y.  291; 
The  Vaughanand  Telegraph,  14  Wall. 
258;  Fabbri  v.  Kalbfleisch,  52  N.  Y. 
28. 


3  Hancock  v.  Franklin  Ins.  Co.  114 
Mass,  155;  but  see  Wright  v.  Jacobs, 
61  Mo.  19. 

4  Christ  Church  Hospital  v.  Fuech- 
sel,  54  Pa.  St.  71;  Mather  v.  Kinike, 
51  Pa.  St.  425;  The  Emily  B.  Sonder, 
8  Blatchf.  337;  S.  C.  17  WaU.  666; 
Sheehan  v.  Dalrymple,  19  Mich.  239; 
Cotton  V.  Dunham,  2  Paige,  267; 
Black  V.  Ward,  27  Mich.  191;  OUver 
V.  Shoemaker,  35  Mich.  464. 

5Bronson  v.  Rodes,  7  Wall.  229; 
Emily  Sonder,  17  id.  666;  Trebelcock 
V.  Wilson,  12  id.  687;  Dewing  v. 
Sears,  11  Wall.  379;  Quin  v.  Lloyd,  1 
Sweeney,  253;  Carrier  v.  Davis,  111 
Mass.  480;  Independent  Ins.  Co.  v, 
Thomas,  104  id.  192;  Chisholm  v. 
Arrington,  43  Ala.  610;  Kellogg  v. 
Sweeney,  46  N.  Y.  291;  PliiUips 
V.  Dugan,  21  Ohio  St.  466;  Chesa- 
peake Bank  v.  Swain,  29  Md.  483. 
See  Gist  v.  Alexander,  15  Rich.  50: 
Townsend  v,  Jennison,  44  Vt.  315; 
Grand  v.  Pendergast,  58  Barb.  216. 


334  PEcmsriAKY  eepeesentative  of  value. 

thongli  depreciated,  if  he  pa3^s  when  it  is  due ;  but  if  he  does 
not,  and  that  currency  is  money,  is  the  subsequent  depreciation 
an  item  of  legal  damage  to  the  creditor ;  or  if  it  subsequently 
appreciates,  is  the  increase  of  value  an  item  for  which  allow- 
ance can  be  made  against  him?  In  an  early  case  in  North 
Carolina  the  court  say :  "  Where  the  currency  in  which  the 
judgment  is  to  be  given,  is  equal,  sum  for  sum,  to  the  money 
mentioned  in  the  bond,  the  jury  assess  damages  usually  for  the 
detention  to  the  amount  of  the  interest  accrued,  but  they  are 
not  obliged  to  assess  damages  to  that  amount  only.  If  upon 
inquiry,  for  instance,  they  find  that  one  pound  of  the  present 
currency  of  this  currency  is  not  equal  to  one  pound  of  the 
money  payable  by  the  obligation,  whether  this  inequality  be 
occasioned  by  depreciation  or  any  other  cause,  and  though  the 
money  mentioned  in  the  obligation  be  not  foreign  money,  they 
may,  in  the  assessment  of  damages,  increase  them  beyond  the 
amount  of  the  interest,  so  as  to  make  the  damages  and  principal 
equal  in  value  to  the  principal  and  interest  mentioned  in  the 
bond."  ^  But  whatever  may  be  the  rule  in  respect  to  a  mere 
conventional  money,  a  debt  or  hability  payable  in  a  legal  ten- 
der currenc}^,  may  always  be  discharged  in  that  currency  at 
par,  and  no  alloAvance  is  made  for  fluctuations  in  its  value.- 

More  than  once  in  the  history  of  this  country  has  there  been 
a  conventional  and  fluctuating  paper  currency  in  general  use  as 
a  substitute  for,  and  purporting  to  represent  the  denominations 
of  an  otherwise  ideal  legal  money.  During  the  prevalence  of 
such  currency,  values  have  been  estimated  and  dealt  with  as 
though  this  depreciated  money  were  their  legal  standard  and 
measure.     Questions  of  amount  have  arisen  out  of  such  transac- 

1  Anonymous,  1  Hayw.  L.  and  Eq.  dollar  when  the  contract  "was  made, 

by  Batt.  405.     In  a  note  to  this  case,  and  one  dollar  now  being  equal  to 

it  is  stated  that  there  were  at  the  ten    shillings.      See    Talleaferro    v. 

same  term,  several  cases  of  assump-  Minor,   1    Call,    456;    Massachusetts 

sit  for  currency,  more  depreciated  Hospital  v.  The  Provincial  Ins.  Co. 

at  the  time  of  the  contract  than  it  25  U.  Canada,  Q.  B.  613. 

is  now,  and  according  to  the  direc-  2  gee  Faw  v.  Marstella,  2  Cranch, 

tion  of  the  court,  the  plaintiff  recov-  10,    29;    Bowman    v.    Dowman,    i 

ered  only  the  real  value  in  the  pres-  Wash.  (Va.)  26;  Higgins  v.  R.  R.  &  A. 

ent  currency,  the    sum    demanded  W.  &  M.  Co.  27  Cal.  153;  Metropoli- 

being  reduced  one-sixth, —  twelve  tan  Bank  v.  Ten  Dyck,  27  N.  Y.  400. 
shillings  having  been  equal  to  one 


MONEY. 


335 


tions  after  this  vicious  currency  had  passed  away,  and  sums 
agreed  to  be  paid,  while  it  was  the  general  medium  of  exchange, 
and  magnified  in  consequence  of  its  depreciation,  have  been  de- 
manded when  paj^ment  could  be  exacted  in  the  pm'e,  legal  cur- 
rency. Scaling  laws  have  then  been  enacted  as  the  only  relief 
against  the  injustice  and  inequality  of  interpreting  the  inflated 
language  of  value,  which  a  depreciated  currency  had  popular- 
ized, by  the  actual  legal  standard  subsequently  brought  into  prac- 
tical use.  This  mode  of  relief  was  resorted  to  in  the  late 
insurgent  states,  after  the  rebellion,  where  the  notes  of  the  confed- 
eracy had  been,  by  necessity,  the  only  circulating  medium ;  and, 
until  the  subject  was  considered  in  the  supreme  court  of  the 
United  States,  scahng  acts  were,  by  the  decision  of  several  of  the 
state  courts,  regarded  as  essential  to  protect  debtors  from  the  en- 
forcement of  contracts  made  "with  reference  to  the  depreciated 
currency,  fi'om  liability  to  pay  an  equal  sum  in  the  lawful  cur- 
rencv  of  the  United  States.^ 


iln  Omohundros  v.  Crump,  18 
Gratt.  703,  Jaynes,  J.,  said,  in  re- 
spect to  notes  made  in  Virginia,  in 
November,  1861,  payable  in  one,  two 
and  three  years:  "The  act  of  March 
3,  1866,  provides  that  in  any  action, 
founded  on  any  contract,  express  or 
implied,  made  and  entered  into  be- 
tween the  1st  day  of  January,  1862, 
and  the  10th  day  of  April,  1865,  it 
shall  be  lawful  for  either  party  to 
show  by  parol  or  other  relevant  evi- 
dence, what  was  the  true  under- 
standing and  agreement  of  the  par- 
ties, either  expressed  or  to  be  implied, 
as  to  the  kind  of  currency  in  wliich 
it  was  to  be  fulfilled,  or  performed, 
or  in  reference  to  which  as  a  stand- 
ard of  value  it  was  made  and  entered 
into.  This  case  does  not  come  with- 
in the  provisions  of  that  act,  be- 
cause the  note  was  made  before  the 
1st  day  of  January,  1863.  It  is  doubt- 
ful, to  say  the  least,  whether  parol 
evidence  of  the  actual  imderstand- 
ing  and  agi'eement  of  the  parties,  as 
to  the  kind  of  currency  in  which  a 


contract  is  to  be  fulfilled,  which  is 
expressed  to  b,e  j^ayable  in  •  dol- 
lars,' generally,  would  be  admissi- 
ble, independently  of  the  provisions 
of  that  act.  The  word  '  dollars ' 
has  a  definite  signification  fixed  by 
law,  and  it  is  laid  do^vn  that  •  when 
the  words  have  a  known  legal  mean- 
ing, such  for  example  as  measures 
of  quantity,  fixed  by  statute,  parol 
evidence  that  the  parties  intended 
to  use  them  in  a  sense  different  from 
their  legal  meaning,  though  it  was 
still  the  customary  and  popular 
meaning,  is  not  admissible.'  1  Green- 
leaf  Ev.  §  280.  See  also  Smith  v. 
Walker,  1  Call,  24;  Commonwealth 
V.  Beaumarchais,  3  Call,  107.  We 
need  not  decide  whether  such  evi- 
dence could  have  been  received  in 
this  case,  because  it  is  expressly 
stated  in  the  facts  agreed,  that  there 
was  no  actual  agreement. 

'  •  It  is  contended,  however,  that  the 
lav.'  will  imph'  aii  agreement  under 
the  circumstances  of  this  case,  to  ac- 
cept confederate  money  in  payment 


336 


PECUNIAEY   EEPRESENTATIVE   OF    VALUE. 


In  1868  a  case  from  Alabama  brought  this  subject  before  the 
federal  court  of  last  resort.  The  question  was,  "  Whether  evi- 
dence can  be  received  to  prove  that  a  promise,  made  m  one  of 
the  insurgent  states,  and  expressed  to  be  for  the  payment  of 
dollars,  without  qualifying  words,  was  in  fact  made  for  the  pay- 
ment of  any  other  lawful  dollars  of  the  United  States  ? "  "  It 
is  quite  clear,"  said  Ch.  J.  Chase,  delivering  the  opinion  of  the 
court,  "  that  a  contract  to  pay  dollars,  made  between  citizens  of 
any  state  of  the  Union,  while  maintaining  its  constitutional  re- 
lations with  the  national  government,  is  a  contract  to  pay  lawful 
money  of  the  United  States,  and  cannot  be  modified  or  ex- 
plained by  parol  evidence.  But  it  is  equally  clear,  if  in  any 
other  country,  coins  or  notes  denominated  dollars  should  be 
authorized  of  different  value  from  the  coins  or  notes  which  are 
current  here  under  that  name,  that,  in  a  suit  upon  a  contract  to 
pay  dollars,  made  in  that  country,  evidence  would  be  admitted 
to  prove  what  kind  of  dollars  were  intended ;  and,  if  it  should 
turn  out  that  foreign  dollars  were  meant,  to  prove  their  equiva- 
lent value  in  lawful  money  of  the  United  States.     Such  evi- 


of  the  note  on  which  the  action  is 
founded.  The  argument  is,  that  the 
note,  having  been  made  after  the 
establishment  of  the  confederate 
states,  must  be  considered  as  made 
with  reference  to  the  actual  currency 
of  those  states;  and  that  as  confed- 
erate notes  were  the  actual  cur- 
rency in  those  states  at  the  time  the 
note  became  paj'^able,  it  was  pay- 
able in  that  currency. 

' '  It  must  be  remembered,  however, 
that  confederate  notes  were  never 
made  a  legal  tender.  They  were 
never  the  lawful  money  of  the  coun- 
try, but  only  a  substitute  for  money 
like  bank  notes.  Gold  and  silver 
were  the  lawful  money  of  the  con- 
federate states  at  the  time  this  note 
was  made,  and  also  at  the  time  it 
became  payable,  according  to  the 
provisions  of  the  act  of  the  con- 
gress of  the  United  States,  expressly 
adopted  by  the  congress  of  the  con- 
federate states.     The    principle    of 


public  law  relied  on  by  the  counsel 
for  the  appellant,  and  quoted  from 
Story^  Confl.  §  242,  presumes,  in  the 
absence  of  evidence  to  the  contrary, 
that  every  contract  is  made  with 
reference  to  the  lawful  currency  of 
the  country  in  which  it  is  entered 
into. 

"  It  does  not  presume  it  to  be  made 
with  reference  to  any  substitute  for 
such  currency  which  may  happen  to 
circulate.  A  contract  made  in  Rich- 
mond, before  the  war,  for  the  pay- 
ment of  so  many  dollars,  would  not 
have  been  deemed  payable  in  bank 
notes,  though  bank  notes  were  then 
the  common  and  practically  the  ex- 
clusive currency.  And  so  in  this 
case,  if  we  apply  to  the  confederate 
states  the  principle  relied  on,  the 
note  must  be  deemed  payable  in 
specie,  which  was  the  lawful  money 
of  the  confederate  states  at  the  time 
it  became  payable."  Boulware  v. 
Newton,  18  Gratt.  708. 


MONEY.  337 

dence  does  not  alter  or  modify  the  contract.  It  simply  explains 
an  ambiguity,  which,  under  the  general  rules  of  evidence,  may 
be  removed  by  parol  evidence.  We  have  already  seen  that  the 
people  in  the  insurgent  states,  under  the  confederate  govern- 
ment, were,  in  legal  contemplation,  substantially  in  the  same 
condition  as  inhabitants  of  districts  of  a  country  occupied  and 
controlled  by  an  invading  belligerent.  The  rules  which  would 
apply  in  the  former  case  would  apply  in  the  latter ;  and,  as  in 
the  former  case,  the  people  would  be  regarded  as  subjects  of  a 
foreign  power,  and  contracts  among  them  be  interpreted  and 
enforced  "with  reference  to  the  conditions  imposed  by  the  con- 
queror, so  in  the  latter  case,  the  inhabitants  must  be  regarded 
as  under  the  authority  of  the  insurgent  belligerent  power  act- 
ually established  as  the  government  of  the  country,  and  con- 
tracts made  with  them  must  be  interpreted  and  enforced  with 
reference  to  the  condition  of  things  created  by  the  acts  of  the 
governing  power.  It  is  said,  indeed,  that  under  the  insurgent 
government  the  word  dollar  had  the  same  meaning  as  under 
the  government  of  the  United  States;  that  the  confederate 
notes  were  never  made  a  legal  tender ;  and,  therefore,  that  no. 
evidence  can  be  received  to  show  any  other  meaning  of  the- 
word  when  used  in  a  contract.  But,  it  must  be  remembered 
that  the  whole  condition  of  things  in  the  insurgent  states  was 
matter  of  fact  rather  than  matter  of  law,  and  as  matter  of 
fact,  these  notes,  payable  at  a  future  and  contingent  day,  which 
has  not  arrived  and  can  never  arrive,  were  forced  into  circula- 
tion as  dollars,  if  not  directly  by  the  legislation,  yet  indirectly 
and  quite  as  effectually  by  the  acts  of  the  insurgent  government. 
Considered  in  themselves,  and  in  the  light  of  subsequent  events, 
these  notes  had  no  real  value,  but  they  were  made  current  as 
dollars  by  irresistible  force.  They  were  the  only  measure  of 
value  which  the  people  had,  and  their  use  was  a  matter  of  al- 
most absolute  necessity.  And  this  gave  them  a  sort  of  value, 
insignificant  and  precarious  enough,  it  is  true,  but  always  having 
a  sufficiently  definite  relation  to  gold  and  silver,  the  universid 
measures  of  value,  so  that  it  was  always  easy  to  ascertain  how 
much  gold  and  silver  was  the  real  equivalent  of  a  sum  expressed 
in  this  currency.     In  the  light  of  these  facts,  it  seems  hardly 

less  than  absurd  to  say  that  these  dollars  must  be  regarded  as 
Vol.  1  —  22 


338 


PECUNIAET   REPRESENTATIVE   OF   VALUE. 


identical  in  kind  and  value  with  the  dollars  which  constitute 
the  money  of  the  United  States.  We  cannot  shut  our  eyes  to 
the  fact  that  they  were  essentially  different  in  both  respects ; 
and  it  seems  to  us  that  no  rule  of  evidence  properly  understood 
requires  us  to  refuse,  under  the  circumstances,  to  admit  proof 
of  the  sense  in  which  the  word  dollar  is  used  in  the  contract 
before  used."  ^ 


1  Thornton  v.  Smith,  8  Wall.  1. 
See  Hanauer  v.  Woodrafl,  15  Wall. 
448;  Confederate  Note  Case,  19  id, 
548.  In  this  case.  Field,  J.,  said: 
♦'The  tx-easury  notes  of  the  confed- 
erate government  were  issued  early 
in  the  war,  and,  though  never  made 
a  legal  tender,  they  soon,  to  a  large 
extent,  took  the  place  of  coin  in  the 
insurgent  states.  Within  a  short 
period  they  became  the  principal 
currency  in  which  business  in  its 
multiplied  forms  was  then  tran- 
sacted. The  simplest  purchase  of 
food  in  the  market,  as  well  as  the 
largest  dealings  of  merchants,  were 
generally  made  in  this  currency. 
Contracts  thus  made,  not  designed 
tx)  aid  the  insurrectionary  govern- 
ment, could  not,  therefore,  without 
manifest  injustice  to  the  parties,  be 
treated  as  invalid  between  them. 
Hence,  in  Thornton  v.  Smith,  this 
court  enforced  a  contract  payable 
in  these  notes,  treating  them  as  a 
currency  imposed  upon  the  com- 
munity by  a  government  of  irresist- 
ible force.  As  said  in  a  later  case, 
referring  to  this  decision:  '  It  would 
have  been  a  cruel  and  oppressive 
judgment,  if  aU  the  transactions  of 
the  many  millions  of  people  com- 
posing the  inhabitants  of  the  insur- 
rectionary states,  for  the  several 
years  of  the  war,  had  been  held 
tainted  with  illegality  because  of  the 
use  of  this  forced  currency,  when 
these  transactions  were  not  made 
with  reference  to  the  insuri'ection- 
ary  government.'    The  confederate 


notes,  being  greatly  increased  in 
volume  from  time  to  time,  as  the 
exigencies  of  the  confederate  gov- 
ernment required,  and  the  probabil- 
ity of  their  ultimate  redemption 
growing  constantly  less,  necessarily 
depreciated  in  value  as  the  war 
progressed,  until,  in  some  por- 
tions of  the  insurgent  territory, 
at  the  close  of  the  year  1863,  $20  in 
these  notes,  and  at  the  close  of  the 
year  1864,  $40  possessed  only  the 
purchasing  power  of  $1  in  lawful 
money.  The  precious  metals,  how- 
ever, still  constituted  the  legal  money 
of  the  insxirgent  states,  and  alone  an- 
swered the  statutory  definition  of 
dollars;  but,  in  fact,  had  ceased  in 
nearly  all,  certainly  in  a  large  part, 
of  the  dealings  of  parties,  to  be  the 
measures  of  value.  When  the  war 
closed,  these  notes,  of  course,  be- 
came at  once  valueless  and  ceased 
to  be  current,  but  contracts  made 
ui^on  their  purchasable  quality,  and 
in  which  they  were  designated  as 
dollars,  existed  in  great  numbers. 
It  was  at  once  evident  that  great  in- 
justice would  in  many  cases  he 
done  to  parties  if  the  terms  used 
were  interpreted  only  by  reference 
to  the  coinage  of  the  United  States, 
or  their  legal  tender  notes,  instead 
of  the  standard  adopted  by  the  par- 
ties. The  legal  standard  and  the 
conventional  standard  differed,  and 
justice  to  the  parties  could  only  be 
done  by  allowing  evidence  of  the 
sense  in  which  they  used  the  terms, 
and  enforcing  the  contracts  thus  in- 


TAR   ANT)   KATE   OF   EXCHAI^GE.  339 

The  presumption  from  the  promise  to  pay  dollars  was  that 
dollars  of  lawful  money  were  meant.^  But  this  presumption  was 
reversed  by  the  provisions  of  the  scaling  laws  enacted  in  some 
of  the  states.  Payments  actually  received  by  the  creditor  in 
confederate  notes  were  held  valid.^  But  it  was  held  in  some  of 
the  southern  states  that  payments  received  by  an  agent  or 
trustee  in  such  currency  would  not  have  effect  as  such.''  In 
Tennessee,  North  Carolina  and  Georgia,  however,  it  was  held 
that  a  sheriff  is  authorized  to  receive,  in  the  absence  of  instruc- 
tions to  the  contrary,  whatever  kind  of  money  is  passing  cur- 
rently in  the  payment  of  debts  of  the  same  character  as  that 
which  he  has  to  collect,  subject  to  the  limitation  that  he  would 
not  be  warranted  in  receiving  any  currency  so  depreciated  as  to 
amount  to  notice  that  the  creditor  would  not  receive  it.^ 

Section  2. 

PAR  AND  RATE  OF  EXCHANGE. 

Par  of  exchange. —  There  is  no  common  or  international  unit 
of  value ;  and  the  business  and  commerce  of  the  world  is  con- 
ducted in  many  kinds  of  money.  It  often  becomes  necessary, 
therefore,  to  enforce  the  collection  of  debts  incurred  or  con- 
tracted in  one  currency  by  resort  to  courts  whose  judgments 
are  rendered  in  another ;  and  the  gold  and  silver  coins  of  one 
country  often  circulate  as  money  in  other  countries,  and  are 
current  at  their  value,  which  is  capable  of  equivalent  expression 

terpreted.     The    anomalous    condi-  Powell  v.  Knighten,  Adm'r,  43  Ala. 

tion    of    things    at    the  south  had  626;  Fritz   v    Stover,  22  Wall.  198. 

created  in  the  meaning  of  the  word  See  also  Robinson  v.  Int.  Life  Ass. 

'dollar'   an  ambiguity  which  only  So.  etc.  42  N.  Y.  54;    Bank  of  the 

parol  evidence  could  in  many  in-  Old  Dominion  v.  McVeigh,  20  Gratt. 

stances      remove."'      Gavinzel      v.  451 ;  Alley  v.  Rogers,  19  Gratt.  366. 
Crump,  22  Wall.  308.  4  Atkins  v.  Mooney,  N.  C.  L.   32: 

lid.;    Wilcoxen  v.    Reynolds,   46  Emerson  v.  Maffet,  Phil.    Eq.   236: 

Ala.   529;    Taunton  v.  Mclnish,  id.  Douglas  v.  Mil.  8  Tenn.  44;  Turner  v. 

619;   Neeley  v.  McFadden,  2  Rich.  Collier,  id.;  Boyd  v.  Sales,  39  Ga.  74: 

109;  WilHamson  V.  Walker,  1  Cold.  1.  King  v.  King,  37  id.  205;  Campbell 

2  Ponder  v.  Scott,  44  Ala.  241.  See  v.  Miller,  38  id.  304;  Hutchins  v. 
Wise  V.  Faulkner,  44  id.  471.  Hullman,   34    Ga.    346;    Neeley    v. 

3  Scruggs  V.  Luster,  1  Tenn.  150;  Woodward,  7  Tenn.  495.  See  Van 
Whiteley  V.  Moseley,  46  Ala.  480.  See  Vacter  v.  Brewster,  1  Sm.  &  M.  400. 
Williams  v.  Campboll,  46  Miss.  57; 


340 


PECmsnAEY  KErRESENTATIVE  OF  VALUE. 


in  the  local  currency.  Whatever  the  coinage,  a  like  amount  of 
these  precious  metals  will,  in  all  forms  of  coined  money,  be  of 
niie  intrinsic  value,  depending  for  its  equality  on  weight  and 
fineness.  An  amount  stated  in  one  currency  which  is  an 
equivalent  for  the  same  value  expressed  in  another,  is  the  par 
of  exchange ;  it  is  a  literal  translation  of  the  language  of  value 
in  one  country  or  currency  into  that  of  equal  value  in  another. 
The  true  par  of  exchange  between  two  countries  is  the  equiv- 
alent of  a  certain  amount  of  the  currency  of  one  in  the  cur- 
rency of  the  other,  supposing  the  currency  of  both  to  be  at  the 
precise  weight  and  purity  fixed  by  their  respective  mints ;  ^  or  in 
other  words,  it  is  the  amount  which  the  standard  coin  of  either 
country  would  produce  when  coined  at  the  mint  of  the  other.- 


1  McCulloch's  Com.  Die.  tit.  Par  of 
Exchange. 

2  Commonwealth  v.  Haupt,  10  Al- 
len, 38.  In  a  late  work  of  much 
merit  on  Negotiable  Instruments, 
by  Mr.  Daniell,  the  par  of  exchange 
is  thus  explained,  2  vol.  §§  1442, 
1443:  "  By  the  par  of  exchange  is 
meant  the  precise  equality  of  any 
given  sum  of  money  in  the  coin  or 
currency  of  one  country,  and  the 
like  sum  in  the  coin  or  currency  of 
another  country  into  which  it  is  to 
be  exchanged,  regard  being  had  to 
the  fineness  and  weight  of  the  coins 
as  fixed  by  the  mint  standard  of  the 
respective  countries.  Cunningham 
on  Bills,  417;  Story  on  Bills,  §  80. 
Mar ius  says:  'Pazr.'as  the  French 
caU  it,  '  is  to  equalize,  match  or 
make  even,  the  money  of  exchange 
from  one  place  with  that  of  another 
place;  when  I  take  up  so  much 
money  for  exchange  in  one  place  to 
pay  the  just  value  thereof  in  an- 
other kind  of  money  in  another 
place,  without  having  respect  to  the 
current  of  exchange  for  the  same, 
but  only  to  what  the  moneys  are 
worth.'  Marius  on  Bills,  4.  It  is 
necessary  to  this  purpose  to  ascer- 
tain the  intrinsic  values  of  the  dif- 


ferent coins;  and  then  it  is  a  matter 
of  arithmetical  computation  to  ar- 
rive at  the  amount  of  one  which 
wiU  be  the  exact  equivalent  of  a 
certain  amount  of  the  other  into 
which  it  IS  to  be  exchanged.  When 
this  has  been  accomplished,  and  the 
exact  equivalent  of  a  certain 
amount  in  one  currency  has  been 
ascertained  in  another,  should  it  be 
desired  to  transmit  such  amount 
from  one  country  to  another,  the 
rate  of  exchange  between  the  coun- 
tries will  be  added  to  or  subtracted 
from  such  amount,  accordingly  as 
the  course  of  exchange  is  in  favor 
of  the  one  country  or  the  other. 
So  the  par  of  exchange  is  the  equiv- 
alency of  amounts  in  different  cur- 
rencies, while  the  rate  of  exchange 
is  the  difi'erence  between  these 
amounts  at  diif  ei'ent  places. 

' '  Gilbert  remarks  on  this  subject, 
in  his  Treatise  on  Banking:  '  The 
real  par  of  exchange  between  two 
countries  is  that  by  which  an  ounce 
of  gold  in  one  couutrj'-  can  be  re- 
placed by  an  ounce  of  gold  of  equal 
fineness  in  the  other  country.  In 
England  gold  is  the  legal  tender, 
and  its  price  is  fixed  at  £3  17s.  lOJ^d. 
per  ounce.     In  France  silver  is  the 


FAR   AKD  KATE  OF  EXCHANGE. 


341 


The  par  of  exchange  is  the  measure  of  damages  only  when 
the  sum  for  which  it  is  substituted  as  an  equivalent  would  be 
the  measure  if  judgment  could  be  taken  in  the  same  cm'rency 
as  that  in  which  the  debt  exists.  It  is  the  measure  where  there 
is  no  question  of  the  rate  of  exchange,  and  the  only  inquiry  is 
what  is  the  equivalent  amount  in  our  currency  to  that  found 
due  in  a  foreign  currency. 

The  nominal  par  based  on  the  equality  in  value  of  gold  or  sil- 
ver, whether  in  foreign  or  domestic  coins,  by  the  universal 
standard,  may  not  be  the  real  par  if  the  money  of  the  former  be 
not  gold  and  silver  of  the  standard  value,  or  if  it  be  some  de- 
preciated substitute.  Then  it  may  be  a  question  whether  the 
creditor  is  entitled  to  judgment  for  an  equivalent  according  to 
the  real  par,  or  whether  he  must  accept  as  an  equivalent  the 
nominal  par.  Judge  Story  says,  "  if  a  note  were  made  in  Eng- 
land for  £100  sterhng,  payable  in  Boston,  if  a  suit  were  brought 
in  Massachusetts,  the  party  would  be  entitled  to  recover  .  .  . 
the  established  par  of  exchange  by  our  laws.     But  if  our  cm-- 


currency,  and  gold,  like  other  com- 
modities, fluctuates  in  price  accord- 
ing to  supply  and  demand.  Usually 
it  bears  a  premium  or  agio.''  In 
the  above  quotation,  the  jjremium 
is  stated  to  be  7  per  mille;  that  is, 
it  would  require  1,007  francs  in  sil- 
ver to  purchase  1,000  francs  in  gold. 
At  this  price  the  natural  exchange, 
or  that  at  which  an  ounce  of  gold 
in  England  would  purchase  an 
ounce  of  gold  in  France,  is  25.31)^. 
But  the  commercial  exchange  — 
that  is,  the  price  at  which  bills  on 
liOndon  would  sell  on  the  Paris  Ex- 
change—  is  25  francs,  25  cents, 
showing  that  gold  is  0.30  per  cent. 
dearer  in  Paris  than  in  London. 
Tables  have  been  constructed  to 
show  the  results  of  each  fluctuation 
in  the  premium  of  gold  in  Paris 
and  Amsterdam  (Gilbert  on  Bank- 
ing, 434);  and  in  Cunningham  on 
BiUs  it  is  said:  By  the  par  of  ex- 
change is  meant  the  precise  equality 
between    any    sum  or  quantity   of 


English  money  and  the  money  of  a 
foreign  country  into  which  it  is  to 
be  exchanged,  regard  being  had  to 
the  fineness  as  well  as  to  the  weight 
of  each.  When  Sir  Isaac  Newton 
had  the  inspection  of  the  English 
mint,  he  made,  by  order  of  council, 
assays  of  a  great  number  of  for- 
eign coins  to  know  their  intrinsic 
values,  and  to  calculate  therebj-  the 
par  of  exchange  between  England 
and  other  countries;  of  which  a 
table  is  given  by  Dr.  Arbutlmot. 
And  he  says  you  may  thereb}^  judge 
the  balance  of  trade,  as  well  as  the 
distemper  of  a  patient  by  the  pulse. 
And  this,  it  seems,  induced  Mons. 
Datol,  in  a  late  book,  entitled  Ee- 
flections  Politique  sur  les  Finances, 
to  follow  the  same  path  in  calculat- 
ing the  par  of  exchange,  and  to  say 
that  the  balance  of  trade  may  be 
thereby  as  well  judged  of  as  the 
weather  by  a  barometer."  Gilbert 
on  Banking,  417. 


342  PECUNIAKY   REPRESENTATIVE   OF    VALUE. 

rency  had  become  depreciated  by  a  debasement  of  our  coinage, 
then  the  depreciation  ought  to  be  allowed  for,  so  as  to  bring  the 
sum  to  the  real  par,  instead  of  the  nominal  par.^  And  for  the 
same  reason,  if  the  money  in  which  the  debt  was  incurred  were 
depreciated,  an  allowance  by  way  of  deduction  should  be  made 
in  ascertaining  the  equivalent  in  a  currency  of  gold  and  silver 
of  standard  value.  There  being  no  statute  fixing  for  general 
purposes  a  legal  par  of  exchange,  the  rule  which  is  established 
by  the  best  authorities  is  that  in  rendering  judgment  in  a  dif- 
ferent currency  the  judgment  should  be  given  for  such  sum  as 
approximates  most  nearly  to  the  value  of  the  amount  con- 
tracted for.2 

E.ATE  OF  EXCHANGE. —  "Where  the  debt  is  not  only  payable  in 
the  currency  of  a  foreign  country,  but  was  expressly  or  by  im- 
plication also  payable  there,  and  not  having  been  paid,  is  sued 
in  this  country,  the  creditor  is  entitled  to  the  money  of  the 
forum,  to  a  smn  equal  to  the  value  of  the  debt  at  the  place 
where  it  should  have  been  paid.  "Wherever  the  creditor  sues, 
the  law  ought  to  give  him  just  as  much  as  he  would  have  had 
if  the  contract  had  been  performed,  just  what  he  must  pay  to 
remit  the  amount  of  the  debt  to  the  country  where  it  was  paya- 
ble. Hence  he  is  entitled  to  recover  according  to  the  rate  of 
exchange  between  the  two  countries  at  the  tune  of  the  trial.' 

1  Story's  Conf .  L.  §  310.  Almshouse    v.    Ramsey,    6    Whart 

2Bennen  v.  Clements,  58  Pa.  St.  331;  Iclison  v.  Lee,  3  Woodb.  &  M 

24;  Robinson  v.  HaU,  28  How.  Pr.  368;  Neckerson  v.  Soesman,  98  Mass 

342;    Pollock   v.   Colglazure,    Sneed  364;  Capron  v.  Adams,  27  Md.  529 
(Ky.),    2;    Comstock    v.   Smith,    20  .  Gushing    v.    Wells,    98    Mass.    550 

Mich.    338;     Reeser    v.    Parker,     1  Smith  t.  Shaw,  3  Wash.  C.  C.  167 

Lowell,  262;  Hawes  v  Woolcock,  26  Stringer    v.    Coombs,    62    Me.    160 

Wis.  629;  Iclison  v.  Lee,  3  Woodb.  &  Grant    v.     Healy,     3     Sumn.     523 

M.  368;  Gary  v.  Courtenay,  103  Mass.  Bennen  v.  Clements,  58  Pa.  St.  24 

316;    Swanson    v.   Cook,    30    How.  Woodhull  v.  Wagner,  1  Baldw.  296 

Pr.  385;  S.  C.  45  Barb.  574;  3  Kent's  Wood  v.  Watson,  53  Me.  300;  Dagal 

Com.  116,  note;  The  Vaughan  and  v.   Naylor,   7    Bing.   460;     Gash    v. 

Telegraph,    14    WaU.    258;    Story's  Kennion,  11  Vee.  314;  Lee  v.  Wil- 

Gonfl.    L.     §§    310,    311;    Scott    v.  cocks,  5  S.  &  R.  48;  Scott  v.  Beavan, 

Beavan,  2  B.  &  Ad.  78.  2  B.  &  Ad.  78,  and  note;  Ekins  v.  The 


3  Marburg  v.  Marbvirg,  26  Md.  8 
Watson  V.  Brewster,  1  Pa.  St.  381 
Hawes  v.  Woolcock,  26  Wis.   629 


E.    India    Co.     1     P.     Wms.     395; 
Lanuse  v.  Baker,  3  Wlieat.  101. 


PAK   AND   EATE   OF    EXCHANGE. 


343 


In  Grant  v.  Healey,  supra,  the 
opinion  places  the  law  on  this  subject 
in  a  clear  light,  and  answers  with 
great  force  the  contrary  decisions  in 
Massachusetts  and  New  York.  "I 
take  the  general  doctrine  to  be 
clear,"  said  the  learned  judge,  "  that 
whenever  a  debt  is  made  payable  in 
one  country,  and  is  afterwards  sued 
for  in  another  country,  the  creditor 
is  entitled  to  receive  the  full  sum 
necessaiy  to  replace  the  money  in 
the  country  where  it  ought  to  have 
been  paid,  with  interest  for  the  de- 
lay; for  then  and  then  only  is  he 
fully  indemnified  'or  tie  violation 
of  the  contract.  In.  every  such  case, 
the  plaintiff  is  therefore  entitled  to 
have  the  debt  due  to  him  first  ascer- 
tained at  the  par  of  exchange  be- 
tween the  two  countries,  and  then 
to  have  the  rate  of  exchange  be- 
tween these  count  vies  added  to  or 
substracted  from  the  amount,  as  the 
case  may  require,  in  order  to  replace 
the  money  in  the  country  where  it 
ought  to  be  paid.  It  seems  to  me 
that  this  doctrine  is  founded  on  the 
ti"ue  principles  of  reciprocal  justice. 
The  question,  therefore,  in  all  cases 
of  this  sort,  where  there  is  not  a 
known  and  settled  commercial  usage 
to  govern  them,  seems  to  me  to  be 
rather  a  question  of  fact  than  of 
law.  In  cases  of  accounts  and  ad- 
vances, the  object  is  to  ascertain 
where,  according  to  the  intention  of 
the  parties,  the  balance  is  to  be  re- 
paid. In  the  country  of  the  creditor 
or  of  the  debtor?  In  Lanusse  v. 
Baker,  3  Wlieat.  101,  147,  the  su- 
l)reme  court  of  the  U.  S.  seem  to 
havo  thought,  that  where  money  is 
advanced,  for  a  person  in  another 
state,  tlie  implied  undertaking  is  to 
replace  it  in  the  country  where  it  is 
advanced,  unless  that  conclusion  is 
repelled  by  the  agreement  of  the 
parties,  or  by  other  controlling  cir- 


cumstances. ...  In  relation  to 
mere  balances  of  account  between 
a  foreign  factor  and  a  home  mer- 
chant, there  may  be  more  difficulty 
in  ascertaining  where  the  balance  is 
reimbursable,  whether  where  the 
creditor  resides,  or  where  the  debtor 
resides.  Perhaps  it  Avill  be  found, 
in  the  absence  of  all  controlling  cir- 
cumstances, the  truest  rule  and  the 
easiest  in  its  application,  is  that  ad- 
vances ought  to  be  deemed  reim- 
bursable at  the  lalace  where  they  are 
made,  and  sales  of  goods  accounted 
for  at  the  place  where  they  are 
made,  or  authorized  to  be  made. 
.  .  .  (Consequa  v.  Fanning,  3  John. 
Ch.  587,  610;  S.  C.  17  John.  51.)  .  .  . 
I  am  aware  that  a  different  rule,  in 
respect  to  balances  of  account  and 
debts  due  and  payable  in  a  foreign 
country,  was  laid  down  in  Martin  v. 
Franklin,  4  John.  135,  and  Scofield 
V.  Day,  20  John.  103,  and  that  it  haa 
been  followed  by  the  supreme  court 
of  Massachusetts  in  Adams  v.  Cordis, 
8  Pick.  260.  It  is  with  unaffected 
diffidence  that  I  venture  to  express 
a  doubt  as  to  the  correctness  of  the 
decisions  of  these  learned  courts 
upon  this  point.  It  ajipears  to  me, 
that  the  reasoning  in  the  4  John. 
135,  which  constitutes  the  basis  of 
the  other  decisions,  is  far  from  be- 
ing satisfactory.  It  states  very 
properly  that  the  court  have  nothing 
to  do  with  inquiries  into  the  dispo- 
sition which  the  creditor  may  make 
of  his  debt  after  the  money  has 
reached  his  hands;  and  the  court 
are  not  to  award  daiuages  upon  such 
uncertain  calculations,  as  to  the  fu- 
ture disposition  of  it.  But  that  is 
not,  it  is  respectfully  submitted,  the 
point  in  controvei'sy.  The  question 
is,  whether  if  a  man  has  undertaken 
to  pay  a  debt  in  one  country,  and 
the  creditor  is  compelled  to  sue  him 
for  it  in  another  countrj-,  where  the 


344 


PECTJNIABT   EEPKESENTATIVE   OF   VALTTS. 


money  is  of  less  value,  the  loss  is  to 
be  borne  by  the  creditor,  who  is  in 
no  fault,  or  by  the  debtor,  who  by 
the  breach  of  his  contract  has  occa- 
sioned the  loss.  The  loss,  of  which 
we  here  speak,  is  not  a  future  con- 
tingent loss.  It  is  positive,  direct, 
immediate.  Tlie  very  rate  of  ex- 
change shows,  that  the  very  sum  of 
money,  paid  in  one  country,  is  not 
an  indemnity  or  equivalent  for  it 
when  jiaid  in  another  country,  to 
which  by  the  default  of  the  debtor 
the  creditor  is  bound  to  resort.  Sup- 
pose a  man  undertakes  to  pay  an- 
other $10,000  in  China,  and  violates 
his  contract;  and  then  he  is  sued 
therefor  in  Boston,  when  the  money, 
if  duly  paid  in  China,  would  be 
w^orth  at  the  very  moment  twenty 
per  cent,  more  than  it  :"s  in  Boston; 
what  compensation  is  it  to  the  cred- 
itor to  pay  him  the  $10,000  at  par  in 
Boston?  Indeed  I  do  not  perceive 
any  just  foundation  for  the  rule  that 
interest  is  payable  according  to  the 
law  of  the  place  where  tlie  contract 
is  to  be  performed,  except  it  be  the 
very  same  on  which  a  like  claim 
may  be  made  as  to  the  principal, 
viz.,  that  the  debtor  undertakes  to 
pay  there,  and  therefore  is  bound  to 
put  the  creditor  in  the  same  situa- 
tion as  if  he  had  punctually  com- 
plied with  his  contract  there.  It  is 
suggested,  that  the  case  of  bills  of 
exchange  stand  upon  a  distinct 
ground,  that  of  usage;  and  is  an  ex- 


ception from  the  general  doctrine. 
I  think  otherwise.  The  usage  has 
done  nothing  more  than  ascertain 
what  should  be  the  rate  of  damages 
for  a  violation  of  the  contract  gen- 
erally, a  matter  of  convenience  and 
daUy  occurrence  in  business,  rather 
than  to  have  a  fluctuating  standard 
dependent  ujion  the  daily  rates  of 
exchange;  exactly  for  the  same 
reason  that  the  rule  of  deducting 
one-third  new  for  old  is  applied  to 
cases  of  repairs  of  ships,  and  the 
deduction  of  one-third  from  the 
gross  freight  is  applied  in  cases  of 
general  average.  It  cuts  off  all 
minute  calculations  and  inquiries 
into  evidence.  But  in  cases  of  bills 
of  exchange,  drawn  between  coun- 
tries where  no  such  fixed  rate  of 
damages  exists,  the  doctrine  of  dam- 
ages, applied  to  the  contract,  is  pre- 
cisely that  which  is  sought  to  be 
applied  to  the  case  of  a  common 
debt  Hue  and  payable  in  another 
country;  that  is  to  say,  to  pay  the 
creditor  the  exact  sum  which  he 
ought  to  have  received  in  that  coun- 
try. That  is  sufficiently  clear  from 
the  case  of  MeUish  v.  Simeon,  2  H. 
Black,  378,  and  the  whole  theory  of 
re-exchange."  See  Lodge  v.  Spooner, 
8  Gray,  166;  Hussey  v.  Farlow,  9 
Allen,  263;  Bush  v.  Baldrey,  11  Al- 
len, 367;  Weed  v.  Miller,  1  McLean, 
423;  Gratacup  v.  WouUwise,  2  Mc- 
Lean, 581. 


PAYMENT.  345 

CHAPTER  YII. 

CONVENTIONAL  LIQUIDATIONS  AND  DISCHARGES. 
Section  1. 

PAYMENT. 

What  it  is;  various  modes  of  making —  What  is  not  payment  —  Effect  of 
payment  —  Payment  before  a  debt  is  due  —  Payment  by  legacy  —  By 
gift  inier  vivos  —  By  retainer  —  Payment  in  counterfeit  moncTj,  or  bills 
of  broken  banks  —  By  note,  bill  or  check — By  collaterals  collected,  or 
lost  by  negligence  of  creditor  —  Who  may  make  payment  —  To  whom 
payment  may  be  made  —  Pleading  and  evidence  of  payment. 

Payment  ;  what  it  is  ;  vakious  modes  of  making. —  Payment 
is  the  actual  performance  of  an  agreement  or  duty  to  pay  money. 
It  is  distinguishable  from  accord  and  satisfaction,  and  from  re- 
lease ;  it  is  strict  performance  in  respect  to  a  debt,  according  to 
its  Hteral  and  substantial  import ;  accord  and  satisfaction  is  the 
adoption  by  mutual  consent  and  doing  some  other  act,  as  a  sub- 
stitute; release  is  a  renunciation  of  the  contract  or  liabihty, 
whereby  performance  is  waived.  But  accord  and  satisfaction  is 
a  payment  sub  modo,  and  a  release,  as  it  must  be  founded  on  an 
actual  consideration,  shown  or  implied,  is  to  the  extent  of  such 
consideration,  a  payment  or  satisfaction.^ 

A  payment  includes  the  transfer  by  the  debtor  to  and  receipt 
by  the  creditor  of  money,  or  something  else  of  value  accepted  by 
him  as  representing  it.  The  debtor  is  bound  to  seek  the  creditor 
to  pay  hnn.2  This  principle  does  not  require  a  debtor  to  follow 
his  creditor  to  another  state  or  country  from  that  where  the 
debt  was  contracted,  and  by  nnplication  or  expressly  to  be  paid. 
But  as  nothing  but  actual  payment  wiU  discharge  the  debt,  this 
duty  of  seeldng  the  creditor  will  more  properly  be  considered  in 
connection  with  the  subject  of  tender.^ 

If  a  debtor  is  directed  by  his  creditor  to  remit  money  by  mail, 
or  if  that  be  the  usual  mode  of  remitting  money,  and  the  remit- 

1  See  Bottomley  v.  Nuttall,  5  Com.  120;  Saward  v.  Palmer,  3  Moore 
B.  N.  S.  122,  134,  135.  2T6. 

•^  Crowley  v.    Hillaiy,  3  M.    &  S.         -'  Post,  p.  459. 


346  CONVENTIONAL   LIQUIDATIONS   AND   DISCHAKGES. 

tance  be  lost,  the  creditor  must  sustain  the  loss.^  In  such  case, . 
the  direction  in  respect  to  the  mode  of  remittance,  complied 
with,  fulfils  all  the  requisites  of  payment  —  tender  and  accept- 
ance,—  both  of  which  are  essential.  To  constitute  a  payment, 
money  or  some  valuable  thing  must  be  dehvered  by  the  debtor 
to  the  creditor,  for  the  purpose  of  extinguishing  the  debt,  and 
the  creditor  must  receive  it  for  the  same  pm'pose.^  The  defend- 
ants forwarded  to  plaintiffs  sufficient  to  pay  a  note  held  by  the 
latter  against  the  former,  but  the  plaintiffs  refused  to  receive  it, 
and  informed  the  defendants  that  the  money  Avas  subject  to  their 
order;  and  it  was  held  not  a  payment.  And  it  was  also  held 
that  if  the  defendants  would  protect  themselves  against  costs, 
they  should  have  withdrawn  the  deposit  and  made  a  tender.^ 

The  crethtor  may  assent  in  advance  to  a  mode  of  payment 
which  reserves  no  subsequent  election,  by  excluding  any  concur- 
rent act  on  his  part,  in  accomplishing  it,  or  by  making  any  con- 
current act  obligatory.  Thus,  an  award  made  against  a  party, 
in  pursuance  of  a  submission,  m  which  he  agreed  to  indorse  it  on 
a  note,  is  a  payment  j9ro  tanto^  So  money  paid  by  a  debtor  to  a 
third  person,  on  the  prior  request  of  the  creditor,  is  a  payment.' 
The  tender  of  bonds,  etc.,  of  a  banking  association  to  them  in 
payment  of  a  debt,  in  pursuance  of  their  agreement  to  receive 
them  in  payment ;  ^  or  work  done  for  the  payee  of  a  note  by 
the  maker,  under  an  agreement  that  the  proceeds  are  to  be 
apphed  to  discharge  the  note,  is  a  payment.'' 

"Where  it  is  agreed  between  debtor  and  creditor  that  the 
former  shall  do  some  collateral  act,  for  a  stipulated  price,  or 
which  may  be  made  certain ;  and  it  is  agreed  it  shall  be  deemed 
a  payment,  or  part  payment  of  the  debt,  the  amount  so  stipu- 
lated becomes  at  once  a  payment,  when  the  act  has  been  per- 

'  Warwick  v.  Nookes,  Peake,  67.  ^  Leavett  v.   Burr,  Hill  &  Denio, 

See  Parker  v.  Gordon,  7  East,  385.  Supp.  231.    See  Northampton  Bank 

2  Kingston  Bank  v.  Gay,  19  Barb.  v.  Bartlett,  8  Serg.  &  W.  311;  Wood- 

459.  rotf  V.  Trapnall,  7  Eng.  811;  S.  C.  10 

3 Id.;    Greenough    v.     Walker,    5  How.    U.    S.    190;   Exchange  Bank 

Mass.  214;  Clark  v.  Wells,  5  Gray,  69.  of  Va.  v.  Knox,  19  Gratt.  739;  Mann 

"Flint  V.  Clark,  12  Johns.  374.  v.  Carter,  6  Robt.  128. 

5  Brady  v.  Durbrow,  2  E.  D.  Smith,         '  Moore  v.    Stadden,  Wright,   88; 

78;    Storey    v.    Meuzies,   4    Chand.  Hod  v.  Holmes,  4  Pa.  St.  251. 
(Wis.)  01. 


PAYMENT. 


347 


formed.  In  case  of  mutual  connected  debts,  it  is  not  necessary 
that  the  formahty  should  be  gone  through,  of  each  party  hand- 
ing the  amount  he  owes  over  to  the  other,  whether  the  sums 
they  are  mutually  entitled  to  be  equal  or  not.  If  they  are  equal, 
they  wholly  cancel  each  other;  if  not  equal,  the  lesser  is  to  be 
deducted  from  the  greater.  These  compensations,  when  they 
fahiy  and  properly  occur,  are  reciprocal  payments.^ 

An  agreement  between  parties  having  mutual  demands  to 
set  off  one  against  the  other  would  seem  on  principle  and  the 
weight  of  authority  to  take  effect  also  as  reciprocal  payments ; 
and  the  same  effect  arises  in  all  cases  of  connected  accounts.' 


1  Roberts  v.  Wilkinson,  34  Mich. 
129;  Connecticut  Mu.  Ins.  Co.  v. 
State  Treas.  31  Mich.  6.  See  Sword 
V.  Keith,  31  id.  247;  42  Vt.  205;  Slos- 
son  V.  Davis,  1  Aik.  78;  Strong  v. 
McConnell,  10  Vt.  231;  Chellis  v. 
Woods,  11  Vt.  466;  Robinson  v. 
Hurlburt,  84  Vt.  115;  Bronson  v. 
Rugg,  39  Vt.  241;  Downer  v.  Sin- 
clair, 15  Vt.  495;  Hoffman  v.  Walker, 
26  Gratt.  314;  Eaves  v.  Henderson, 
17  Wend.  190. 

2  In  Davis  v.  Spencer,  24  N.  Y.  386,  it 
was  held  that  an  agreement  between 
the  payee  of  a  note  and  the  maker, 
made  with  the  assent  of  the  latter's 
partner,  to  apply  the  indebtedness  of 
the  payee  to  such  maker  and  his  part- 
ner in  payment  of  the  note.oioerates  in 
presenti,  as  a  satisfaction  of  the  note 
pro  tanto.  Allen,  J.,  said:  "For- 
merly there  ap^iears  to  have  been  a 
doubt  whether  an  agreement  to  set 
off  precedent  debts  operated  as  pay- 
ment, satisfaction  or  extinguish- 
ment. An  accord  that  each  of  the 
parties  should  be  quit  of  actions 
against  the  other  was  said  not  to 
be  good,  because  it  was  not  any  satis- 
faction. Bac.  Abr.  Accord.  A.  But 
there  is  no  difference  in  principle 
between  an  agreement  concerning 
debts,  one  of  wliich  is  to  be  con- 
tracted in  the  future,  as  in  Eaves  v. 
Henderson,  17  Wend.  190,   and  an 


agreement  concerning  debts  already 
existing;  and  it  has  been  decided 
that  an  agreement  to  discontinue  and 
a  discontinuance  of  cross  actions  for 
false  imprisonment,  constitute  an  ac- 
cord and  satisfaction,  and  bar  anoth- 
er action  by  either.  Foster  v.  Trull, 
12  John.  456.  Whenever  a  valid  new 
contract  is  substituted  in  the  place  of 
the  old,  ...  an  action  wiU  not 
lie  on  the  old  contract,  but  the  rem- 
edy of  the  parties  is  on  the  new  or 
substituted  agreement,  although  the 
transaction  may  not  amount  to  a 
teclmical  accord  and  satisfaction. 
Good  V,  Cheeseman,  2  B.  &  Ad.  328. 
Where  two  brothers,  A  and  B,  prin- 
cipal and  surety  in  an  annuity,  had, 
in  an  agreement  between  them  and  a 
third  brother  for  the  settlement  of 
then-  affairs,  declared  that  the  bond 
was  the  debt  of  B,  the  surety,  it  was 
held  that  this  agreement,  whether 
subsequently  acted  upon  or  not,  was 
a  binding  accord  between  A  and  B. 
Cartwright  v.  Cook,  3  B.  &  Ad.  701. 
HiUs  V.  Misnard,  10  Ad.  &  El.  N.  S. 
266,  is  in  principle  not  unlike  Eaves 
V.  Henderson,  supra.  The  action 
was  by  payees  against  acceptors  of 
a  bUl.  Tiie  defendants  became  ac- 
ceptors for  the  accommodation  of 
one  Hundle,  and  the  plaintiffs,  the 
payees,  agreed  to  appropriate  cer- 
tain moneys  which  they  expected  to 


348 


CONVENTIONAL   LIQUIDATIONS   AND   DISCHARGES. 


Thus,  if  A  has  a  vahd  and  subsistmg  demand  against  B  for 
goods,  services,  or  cash,  constituting  proper  items  for  an  account 
upon  which  he  has  a  present  right  of  action,  and  before  com- 
mencing suit  thereon,  credits  on  such  account  a  demand  B  has 
against  him  for  services  at  their  fair  and  full  value,  such  credit 
by  A  so  far  operates  as  payment  that  B  cannot  maintain  an  ac- 
tion for  his  demand  brought  while  such  other  suit  is  pending.^ 


receive   in    discharge    of   the  bill. 
They    subsequently    received    the 
money,  and  the  court  held  it  a  pay- 
ment of  the  biU  pro  tanto.    Lord 
Denman,  Ch.  J. ,  says:  It  was  compe- 
tent for  the  parties  to  agree  before- 
hand that  the  money  should  be  spe- 
cifically applied  to  the  discharge  of 
the  liabiHty  on  the  bill  pro  tanto. 
'  And  it  seems  to  be  the  good  sense 
of  the  transaction  to  treat  it  as  so 
much  money  i^aid  to  the  plaintiffs 
by  Hundle  on  their  account  and  as 
their  agent.'     Gai-dner  v.  Callender, 
13  Pick.  374,  is  in  point,  and  decides 
that  when  E  H  R,  one  of  the  ex- 
ecutors of  A  S,  gave  to  the  execu- 
tors of   W    P    a  memorandum    as 
foUows:    '  It  is  agreed  that  the  sum 
$3,235,  due  from  E  H  R  to  the  es- 
tate of  W  P,  shall  be  applied  on  a 
certain  note  of  $G,000,  now  held  by 
the   representatives  of    A.  S.,'  the 
memorandum  amounted  to  a  pay- 
ment on  the  note  and  was  not  mere- 
ly an  executor's    agreement.     The 
fact  that  a  memorandum  in  writing 
was  made  of  the  agreement,  does 
not  vary  its  legal  effect.     It  was  not 
required  by  law  to  be  in  writing. 
The  court,  as  in  Hills  v.  Misnard, 
sought  the  good  sense  of  the  trans- 
action, and  to  give  effect  to  the  sen- 
Bible   arrangement  of    the  parties, 
holding  that  it  could  not  be  neces- 
sary,  in  order  to  connect  the  one 
debt  with  the  other  by  an  agreement 
in  presenti,  th.at  there  should  be  the 
vain  formality  of  passing  the  money 
from  one  party  to  the  other  and  re- 


turning it  again  to  the  party  from 
wliom  it  just  came,  or  that  a  formal 
release  or  receipt  should  be  executed. 
This  case  is  not  cited  by  counsel  or 
alluded  to  by  the  court  in  the  sub- 
sequent case  of  Gary  v.  Bancroft,  14 
Pick.  315,  but  the  latter  was  decided 
upon  a  ground  which  distinguished 
it  from  the  former  case;  the  coiu't 
holding  that  in  the  case  last  cited 
the  agreement  was  executory'  and 
not  executed,  requiring  some  fur- 
ther act  to  be  done  before  the  one 
note  would  operate  as  payment  or 
extinguishment  pro  tanto  of  the 
other.  Dehon  v.  Stetson,  9  Met. 
341,  followed  Gary  v.  Bancroft,  and 
was  decided  upon  the  same  ground. 
Another  point  was  in  the  case,  to 
wit:  that  one  of  the  parties  inter- 
ested in  the  debt  which  it  was  sought 
to  apply  in  payment  as  the  individ- 
ual debt  of  one  of  his  partners,  had 
not  been  consulted,  and  had  no 
knowledge  of  the  contemplated  ar- 
rangement." See  Peabody  v.  Petei-s, 
5  Pick.  1;  Dudley  v.  Stiles,  33  Wis. 
371;  Ely  v.  McKnight,  30  How.  Pr. 
97;  Hawkes  v.  Dodge  Go.  Mu.  Ins. 
Go.  11  Wis.  188;  Shinker  v.  First 
National  Bank,  23  Ohio  St.  575; 
Heaton  v.  Angier,  7  N.  H.  397;  Fat- 
lock  V.  Harris,  4  D.  &  E.  180;  Wil- 
son V.  Goupland,  5  B.  &  A.  238; 
Wharton  v.  Walker,  4  B.  &  C.  163; 
Gaxton  v.  Chadley,  3  B.  &  G.  591. 

iBriggs  V.  Richmond,  10  Pick.  39; 
Allen  V.  Garman,  1  E.  D.  Smith, 
693;  Mears  v.  Smith,  Tappan  (Oliio), 
60. 


PAYMENT.  349 

But  where  A  owes  B  by  promissory  note  payable  in  instabnents, 
and  at  the  same  time  holds  a  note  against  B  for  a  larger 
amount,  on  which  he  indorses  as  part  payment  the  amount  of 
the  instabnents  of  his  own  note,  as  they  fall  due,  but  without 
B's  consent,  this  is  not  a  payment  of  the  instalments.^  A  pay- 
ment by  credit  occurs  where  a  bank  receives  a  check  drawn  on 
itself  and  credits  the  holder  the  amount,^  or  where  the  bank  is 
the  creditor  and  receives  the  debtor's  check  drawn  on  itself.* 

There  is  a  distinction  between  the  acceptance  by  a  creditor 
from  his  debtor  of  a  new  security  for  an  old  debt,  and  the 
acceptance  by  a  bank  of  a  check  drawn  upon  itself  in  payment 
of  a  note.  The  former  is  a  mere  substitution  of  one  executory 
agreement  to  pay  for  another,  or  a  commutation  of  securities ; 
and  there  is  no  extinguishment  of  the  precedent  debt,  unless 
there  is  an  agi'eement  to  accept  the  new  obligation  or  security 
as  a  satisfaction  of  the  old.  But  when  a  bank  receives  upon  a 
debt  a  check  drawn  upon  itself  by  one  of  its  customers,  and 
charges  it  in  account,  it  thereby  admits  that  it  has  funds  of  the 
drawer  sufficient  to  meet  the  check,  and  the  acceptance  is  jper  se 
an  appropriation  of  the  funds  to  pay  it.  The  transaction  operates 
directly  as  a  payment  of  the  debt.*  By  a  valid  new  agreement 
the  debtor  may  obtain  the  right  to  pay  otherwise  than  in  money; 
and  the  acceptance  by  the  creditor  of  any  chose  in  action  or 
property  wiU  operate  in  payment.^  The  receipt  by  the  creditor 
of  bank  bills  or  treasury  notes  in  payment  of  a  gold  debt, 
although  under  protest,  and  with  an  express  reservation  of  a 
claim  for  the  difference,  will  be  payment  dollar  for  dollar.^  So 
gold  dollars,  if  applied  towards  the  payment  of  a  debt,  without 
any  special  contract  as  to  the  value  at  which  they  are  to  be 

1  Greenough  v.  Walker,  5  IMass.  Harris,  2  Litt.  173;  Allegheny  R,  R. 
214.     See  Clark  v.  Wells,  5  Gray,  69.  Co.  v.  Casey,  79  Pa.  St.  81;  Eaves  v. 

2  Watkins  v.  Parsons,  13  Kan.  426;  Henderson,  17  Wend.  190;  Perkins 
Weedsport  Bank  v.  Park  Bank,  2  v.  Cady,  111  Mass.  318;  Locke  v. 
Keyes,  561.  Anders,  7  Ired.  169;  Perrot  v.  Pitt- 

3  Pratt  V.  Foote,  9  N.  Y.  463;  Rozet  field,  5  Rawle,  166;  Cramer  v.  Wil- 
V.  McCleUand,  48  lU.  345.  letts,  61  111.  481;  Brown  v.  Teeter,  7 

4 Id.;    Commercial  Bank  v.  Union  Wend.  301;  Burchard  v.  Frazer,  23 

Bank,  11  N.  Y.  203.  Mich.  224. 

sinman  v.  Griswold,  1  Cow.  194;  &Gilman  v.  County  of  Douglas,  6 

Sword  V.  Keith,  31  Mich.  247;  Black  Nev.  27. 
V.    Dorman,    51   Mo.    31;    Casey  v. 


350  CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 

taken,  cannot  be  treated  as  having  any  greater  value  than  an}'- 
other  currency  which  is  a  legal  tender  for  the  payment  of  debts.^ 

On  foreclosure  of  a  mortgage  on  real  estate  by  entry,  the 
land  enures  as  payment  to  the  extent  of  its  value.^  So  taking 
possession  of  chattels  mortgaged  or  forfeited  is  also  payment  to 
the  amount  of  their  value ;  ^  and  the  proceeds  of  sale  realized 
by  foreclosure  are^/'o  taiif.o  payment.*  Taldng  the  debtor's  body 
is  a  satisfaction  unless  he  escape.^  It  has  this  effect  though  the 
creditor  consents  to  his  being  set  at  liberty  on  an  agreement 
which  the  debtor  has  failed  to  perform ;  ^  or  on  his  giving  a 
warrant  of  attorney  which  turned  out  to  l)e  void  for  informality." 
It  is  not,  however,  an  absolute  satisfaction  like  payment,  for  it 
will  not  discharge  a  guarantor,**  or  prevent  the  creditor  from 
pursuing  his  remedy  against  other  parties.^ 

A  levy  on  sufficient  personal  property  b}''  execution  is  2>i'e- 
sumably  a  satisfaction  of  the  debt ;  the  levy  is  a  means  of  pay- 
ment, and  requires  only  the  performance  of  a  ministerial  duty 
by  an  officer  to  accomplish  it.  The  levy  is  not  of  itself  satis- 
faction, and  anj^thing  which  subsequently,  without  the  fault 
of  the  officer  or  creditor,  prevents  actual  satisfaction,  as  if  the 
debtor  has  not  been  deprived  of  property  levied  upon,  will  de- 
stroy its   effect  as   evidence  of   tliat  result.^''     So  long  as  the 

1  Bush  V,  Baldney,  11  Allen,  367.  kinson  v.  Atkinson,  3  Cro.  390;  Ladd 

'^Hedges  v.  Holmes,  10  Pick.  381;  v.   Blunt,   4   Mass.    402;    Bayley  v. 

Briggs  V.  Richmond,  10  id.  371.  French,  2  Pick.  590;  Denton  v.  Liv- 

3  Case  V.  Boughton,  11  Wend.  106;  ingston,  9  John.  98;  Hoyt  v.  Hud- 
Charter  V.  Stevens,  3  Danio,  33.  son,  12  John.  207;  Troup  v.  Wood,  4 

4  Lansing  v.  Goelet,  9  Cow.  346;  John.  Ch.  418;  Ex  parte  Lawrence,  4 
Globe  Ins.  Co.  v.  Lansing,  5  Cow.  Cow.  417;  Jackson  v.  Bowen,  7  Cow. 
380.  IB,  21;  Cornell  v.  Cook,  7  Cow.  312; 

5  Jacques  v.  Witby,  1  T.  R.  557.  Wood  v.  Torry,  6  Wend.  542;  Cass 
eVigers  v.  Aldrich,  4  Burr.  2482;      v.  Adams,  3  Ham.  (Ohio)  223;  Webb 

Blackburn  v.  Stupart,  2  East,  243;  v.  Bumpass.  9  Port.   201;  Green  v. 

Tanner  v.  Hague,  7  T.  R.  420.  Burke,  23  Wend.  490;  Browning  v. 

"Jacques  V.  Witby,  supra;  Loomis  Hanford,   5    Hill,   588;    Duncan    v. 

V.  Storrs,  4  Conn.  440.  See  Sheldon  v.  Harris,  17  S.  &  R.  436;  Farmers'  <fc 

Kibbe,  3  Conn.  214.  ^yj^^ch.    Bank   v.    Kingley,  2    Doug. 

8 Ten-ill  V.  Smith.  8  Conn.  426.  (Mich.)  379;  ChurchiU  v.  Warner,  2 

aPorterv.Ligraham,  lOMass.  887.  n.    H.   308;    Ordinary  v.    Spann,    1 

10 Star  V.  Moore,  3  McLean,    354;  Rich.  359;  Porter  v.  Boone,  1  Watts 

Clerk  V.  Wrthers,  2  Ld.  Raym.  1073;  &  s.  252;  Ex  parte  King,  3  Dev.  341; 

S.  C.  1  Salk.  323;  6  Mod.  300;  Mount-  Binford  v.  Alston,  4  Dev.  354. 

nay  v.  Andrews,  Cro.  Eliz.  237;  At- 


PAYMENT.  351 

property  remains  in  legal  custody,  the  other  remedies  of  the 
creditor  will  be  suspended.  He  cannot  have  a  new  execution 
against  the  person  or  property  of  the  debtor,  nor  maintain  an 
action  on  the  judgment,  nor  use  it  for  the  purpose  of  becoming 
a  redeeming  creditor.^  The  le\y  does  not  divest  title ;  it  only 
creates  a  lien  on  tlie  property.  It  often  happens  that  the  levy 
is  overreached  by  some  other  lien,  is  abandoned  for  the  benefit 
of  the  debtor,  or  defeated  by  his  misconduct.  In  such  cases 
there  is  no  color  for  saying  that  the  judgment  is  gone.  The 
judgment  is  satisfied  when  the  execution  has  been  so  used  as  to 
change  the  title,  or  in  some  other  way  to  deprive  the  debtor  of 
his  property.  This  includes  the  case  of  a  levy  and  sale ;  and 
also  the  case  of  a  loss  or  destruction  of  the  goods  after  they 
have  been  taken  out  of  the  debtor's  possession  by  virtue  of  the 
process.- 

A  sufficient  tender  made,  and  kept  good  by  bringing  the 
money  into  court,  is  then  equivalent  to  a  payment ;  and  is  such 
of  the  date  of  the  tender,  to  prevent  costs  and  interest.  The 
debtor  pleading  it  cannot  withdi'aw  the  money  whatever  may 
be  the  verdict ;  but  the  money  must  be  paid  to  the  plaintiff.^ 

"What  is  not  payment. —  Tlie  deposit  of  money  in  a  bank 
where  a  note  is  payable  is  not  of  itself  a  payment,  but  simply  a 
tender ;  *  unless  in  some  way  appropriated  to  the  note.'  Xor  is 
the  sm'render  of  a  check  at  the  clearino;  house.^  So  chars-ino"  a 
note  supposing  the  maker  had  funds  in  bank,  when,  in  fact,  he 
had  not,  the  charge  being  canceled  tlie  next  day  on  disco verv  of 
the  mistake,  Avill  not  amount  to  pajmient.^  And  where  tlie 
president  of  a  bank  having  his  notes  indorsed  for  his  accom- 
modation lying  therein  under  protest,  procured  the  cashier  to 
make  a  new  note,  which  the  president  indorsed  and  exchanged 
for  those  protested,  delivering  the  latter  to  the  cashier  for  his 
security,  it  was  held  that  the  original  notes  were  not  therein- 
paid,  althougli  the  ]:>resident  entered  them  as  paid  and  all  new 
notes  as  discounted.^     A  clerk  of  a  bank  stole  fi'om  the  drawer 

1  People  V.  Hopson,  1  Denio,  577,  ^  Merchants'  Nat.  Bank  t.  Proctor. 

2  Id.  1  Cin.  Sup.  Co.  1. 

^  Reed  v.  Annstrong,  18  Ind.  446.  'Troy  City  Bank  v.  Grant,  Hill  & 

*HiU  V.  Place,  3  How.  Pr.  2G.  D.  Supp.  119. 

■■"See    Sutherland     v.    First    Nat.  *  Highland     Bank    t.    Dubois,    o 

Bank,  31  Mich.  230.  Denio,  558. 


352  CONYENTIONAL    LIQUIDATIONS    AND    DISCIIAEGES. 

of  another  clerk  bills  belonging  to  the  bank,  which  he  delivered 
over  to  the  cashier,  and  which  the  cashier,  not  knowing  to  have 
been  thus  stolen,  accepted  in  discharge  of  the  balance  due 
from  such  clerk  to  the  bank ;  it  was  held  no  payment.^ 

Thus  it  appears  that  unless  there  is  an  actual  payment  and 
receipt  of  money,  or  something  else  accepted  in  its  place  as 
payment,  a  debt  is  not  satisfied ;  any  ceremony  by  which  pa}'^- 
ment  is  nominall}^  made  or  acknowledged  may  be  avoided  for  mis- 
take or  fraud,  or  where  the  actual  or  authorized  assent  of  the 
creditor  is  wanting. 

Effect  of  payment. —  Whetner  a  payment  made  by  a  guar- 
antor or  surety,  or  a  volunteer  of  any  kind,  will  operate  as  a 
purchase  or  as  an  extinguishment,  depends  on  the  intention 
with  which  the  payment  is  made.-  But  a  debtor  cannot  him- 
self become  the  owner,''  nor  pay  his  debt  without  discharging 
it,  though  he  may  wish  and  intend  to  keep  it  on  foot;*  and 
any  assignment  to  a  third  person  with  a  view  to  keeping  it 
alive,  will  be  void.^  A  payment  actually  made  upon  a  debt, 
whether  of  the  whole  or  part,  is  a  total  or  partial  discharge, 
and  cannot  afterwards  be  changed  except  by  mutual  consent, 
and  if  there  are  other  parties  interested,  by  their  consent  also.^ 

After  a  judgment  recovered  upon  a  paid  debt,  or  without  de- 
ducting payments,  the  payments  cannot  be  recovered  back; 
payment  in  a  strict  sense  is  a  defense,  and  if  not  used  as  such, 
is  lost.^    The  payments  must  be  strictly  such  or  definitely  ap- 

1  State  Bank  v.  Wells,  3  Pick.  394.  Hammatt  v.  Wyman,  9  Mass.  138 

2  Note  to  Lucas  v.  Wilkinson,  1  Braekett  v.  Winslow,  17  Mass.  153 
Hurl.  &  N.  433;  Morris  v.  Oakford,  Adams  v.  Drake,  11  Cush.  504 
9  Barr,  498;  Kiuley  v.  Hill,  4  W.  &  Tuckerman  v.  Newhall,  17  Mass 
S.  426;  Elkinton  V.  Newman,  8  Har-  581;  Chapman  v.  Collins,  12  Cush 
ris,  281;  Carter  v.  Jones,  5  Ired.  196;  163;  Pray  v.  Maine,  7  Cush.  258 
Mathews  v.  Aikm,  1  Comst.  59 J;  Harbeck  v.  Vanderbilt,  20  N.  Y 
1  Lead.  Cas.  in  Eq.  88;  id.  pt.  1,  395,  398.  See  Shaw  v.  Clark,  6  Yt 
167,  2d  Am.  ed.;  Low  v.  Blodgett,  21  507. 

N.  H.  121 ;  Ex  parte  Balch,  2  Lowell,  5  id. 

440;  Harbeck  v.  Yanderbilt,  20  N.  6  Mead  v.  York,  6  N.  Y.  449;  Mar- 

Y,  895;  Mechanics'  Bank  v.  Hazard,  vin  v.  Vedder,  5  Cow.  671;  Hawkins 

13  John.  353.     See  Gillett  v.  Gillett,  v.   Stark,    19  John.    305;  Frost    v. 

9  Wis.  194.  Martin,    26    N.    H.    422;  MiUer  v. 

3  Gordon  v.  Wansey,  21  Cal.  77.  Montgomery,  81  111.  350. 
■*Champney  v.    Cooper,    24  Barb.  "Loring    v.   Mansfield,  17    Mass. 

539;  CoUins  v.  Adams,  52  Vt.  433;     394;  Marriott  v.   Hampton,  7  T.  E. 


PAYMENT. 


353 


propriated  to  the  debt  to  have  that  effect.^  "Where  a  sum  of 
inone}^  was  dehvered  by  the  obhgor  to  the  obhgee  to  be  cred- 
ited by  the  latter  upon  the  bond  as  part  payment,  and  the 
obligee  neglected  to  indorse  or  apply  it,  and  obtained  judg- 
ment for  the  whole  amount  of  the  bond,  the  obligor  was  al- 
lowed to  recover  back  the  money  paid.^    There  was  a  special 


2G9;  De  Sylva  v.  Henry,  3  Port.  133; 
Eggleston  v.  Knickerbocker,  6  Barb. 
458;  Adams  v.  Barnes,  17  Mass.  365; 
Job  V.  Collier,  11  Ohio,  422;  Sey- 
mour V.  Lewis,  19  Wend.  512.  See 
Oilman  v.  Schwartz,  36  Wis.  541. 

iSee  Hazen  v.  Reed,  30  Mich.  331; 
Judd  V.  Littlejohn,  11  Wis.  176. 

2  Woodward  v  HiU,  6  Wis.  147. 
Smith,  J.,  said:  "It  is  a  weU  set- 
tled nile  of  law,  that  the  action  of 
assumpsit  for  money  had  and  re- 
ceived lies,  in  general,  whenever  the 
defendant  has  the  money  of  the 
plaintiff  which  he  ought  not,  in  jus- 
tice and  good  conscience,  to  i-etain; 
and  yet  it  is  equally  weU  settled 
that  money  paid  under  legal  process 
cannot  be  recovered  back,  and  that 
the  merits  of  a  judgment  cannot  be 
overhauled  in  a  new  action;  that 
when  one  has  wrongfully  obtained 
the  money  of  another,  he  is  liable  to 
an  action  for  its  recovery,  and  yet  if 
he  obtains  it  by  legal  process  by 
means  of  a  judgment  for  more  than 
liis  due,  he  cannot  be  disturbed  in 
its  enjoyment.  These  apparent  in- 
consistencies are  discoverable  on  ex- 
amination of  the  various  adjudica- 
tions in  actions  for  money  had  and 
received,  and  are  to  be  attributed, 
doubtless,  to  the  incessant  struggle 
to  which  this  action  has  given  rise, 
between  the  requirements  of  equity 
and  the  stern  maxims  of  the  com- 
mon law.  Indeed,  this  action  for 
money  had  and  received  is  denoiu- 
inated  an  equitable  action,  address- 
ing itself  peculiarly  to  the  con- 
science of  the  court,  under  all  the 
Vol.  1  —  23 


circumstances  of  the  particular 
case. 

"In  view  of  the  equity  of  this 
case,  there  can  be  no  doubt  that  the 
plaintiff  oiight  to  recover  the 
amount  claimed.  So  far  as  the  rec- 
ord indicates  the  rights  of  the  par- 
ties from  a  development  of  their 
transactions,  there  is  no  doubt  that 
the  defendant  obtained  a  decree 
for  some  $200  more  than  was  his 
due,  in  the  foreclosure  suit.  This, 
in  a  court  of  law,  but  more  espe- 
cially in  a  court  of  equity,  would  be 
a  legal  fraud. 

.  .  ' '  This  is  not  like  the  case  of  a 
payment,  the  application  of  which 
is  made  at  the  time,  and  a  receipt 
taken  as  evidence  of  the  fact,  but 
the  money  was  delivered  over  to 
the  defendant,  and  received  by  him 
for  a  specific  purpose.  He  did  not 
use  it  for  the  purpose  for  which  it 
was  delivered  to  him,  but  converted 
it  whoUy  to  his  own  use.  The 
plaintiff  had  a  right  to  rely  upon 
the  good  faith  of  the  defendant  in 
the  application  of  the  money." 

In  Fowler  v.  Shearer,  7  Mass.  14, 
the  plaintiff  had  paid  $20  to  an  at- 
torney, who  held  a  note  against  him 
for  collection,  to  be  aj^plied  by  the 
attorney,  on  the  note.  The  latter 
neglected  to  apply  it,  but  sued  the 
note  and  took  judgment  for  the  full 
amount.  Although  the  attorney  had 
paid  the  money  over  to  his  client, 
yet  the  court  held  him  liable  to  the 
plaintiff  in  an  action  for  money  had 
and  received.  The  plaintiff  had  no- 
tice of  the  suit  on    the   note  and 


35-J:  CONVENTIONAL    LIQUIDATIONS    AND    DISCH^VEGES. 

trust  reposed  in  the  defendant  to  credit  the  money  on  the  bond, 
and  he  violated  that  trust.  Where,  however,  there  is  a  direct 
payment  on  a  debt,  which  is  not  evidenced  by  note,  bond  or 
writing  of  any  kind ;  where  no  act  beyond  payment  and  receipt 
of  it  is  necessary,  or  contemplated  to  give  effect  to  the  pay- 
ment ;  and  the  money  is  passed  from  the  debtor  to  the  creditor 
as  payment  at  once,  and  not  simply  to  become  such  on  the 
doing  of  some  act  to  evidence  it,  it  is  strict  payment,  and  can- 
not be  recovered  back,  though  the  debt  is  afterwards  recovered 
without  deducting  it.^ 

Payment  before  debt  due. —  The  creditor  is  not  obliged  to  re- 
ceive a  part  payment ;  ^  but  if  he  does  so  it  has  the  effect  of 
23artial  satisfaction.  Payment  before  the  money  is  due  is  a  pay- 
ment at  maturity.^  If  a  creditor,  however,  receives  money  be- 
fore it  is  due  on  a  demand  drawing  interest,  such  payment,  in 
the  absence  of  an  agreement  to  the  contrary,  should  be  applied 
to  the  extinguishment  of  the  principal.*  And  even  when  re- 
ceived upon  the  understanding  that  it  was  not  to  draw  interest 
until  the  balance  of  the  debt  should  be  paid,  because  the  cred- 
itor used  the  money  as  his  own,  it  was  held  that  it  should  be 
apphed  at  the  date  of  payment.^ 

Payment  by  legacy. —  A  devise  or  legacy  will  operate  as  pay- 
ment when  it  is  intended  by  the  testator  and  accepted  by  the 
creditor  as  such.^  A  legacy  to  a  creditor,  which  is  equal  to  or 
greater  than  his  debt,  and  which  is  not  contingent  or  uncertain, 
is  presumed  to  be  a  satisfaction  of  the  debt.^  Courts,  however, 
have  given  effect  to  slight  circumstances,  appearing  on  the  face 
of  the  will,  and  otherwise,  by  way  of  repelling  the  presumption 

could  have  insisted  on  the  payment,  *  Starr  v.  Richmond,  30  111.  276. 

yet  he  had  the  right  to  rely  on  the  5  Toll  v.  Hiller,  11  Paige,  228. 

defendant  to  make  the  application.  6  Rose  v.  Rose,  7  Barb.  174;  Clark 

See  Wheeler  v.  Harrison,  28  Mich.  v.  Bogardus,  12  Wend.   67;  Mulhe- 

265.  raus'  Ex'r  v.  Gillespie,  12  Wend.  349. 

iDriscoU  V.  Damp,   17  Wis.  419;  "Wisco's    App.    52    Pa.    St.    195; 

Bronson  v.  Rugg,  39  Vt.  241.  Eaton  v.  Benton,  2  Hill,  576;  Cloud 

!*  Jennings  V.  Shriven,  5  Blackf.  37.  v.    Clinkerhead,    10    B.    Mon.    398; 

3  Holmes  v.   Brockett,    Cro.    Jac.  Strong  v.   Williams,  12   Mass.   392; 

434.     See  Roberts  v.  Wilkinson,  34  Williams  v.  Crary,  5  Cow.   368;    2 

Mich.  129.  Story's  Eq.  §  1100. 


PAYMENT.  355 

of  satisfaction.^  And  the  rule  is  not  allowed  to  prevail  where 
the  legacy  is  of  less  amount  than  the  debt,  even  as  a  satisfaction 
fro  tanto  j  nor  when  there  is  a  difference  in  the  time  of  payment 
of  the  debt  and  of  the  legacy  \  nor  where  they  are  of  different 
natures  as  to  subject  matter ;  nor  where  there  is  an  express  di- 
rection in  the  will  for  the  payment  of  debts.^  When  a  legacy 
is  made  by  a  creditor  to  a  debtor,  and  the  debt  is  less  in  amount 
than  the  legacy,  the  legatee  is  considered  as  having  so  much  of 
the  assets  in  his  hands  as  the  debt  amounts  to,  and,  consequently, 
to  be  satisfied  ^ro  tanto  ;  and  when  the  debt  exceeds  the  legacy, 
the  executors  of  the  testator  are  entitled  to  retain  the  legacy  in 
part  discharge  of  the  debt.^ 

Payment  by  gift  inter  vivos. — A  creditor  may  extinguish  a 
debt  gratuitously  by  such  acts  as  are  equivalent  to  a  gift  con- 
summated. Thus  indorsements  made  in  consideration  of  kind- 
ness, by  direction  and  in  the  presence  of  a  mortgagee,  of  part 
pajinents  upon  a  mortgage  against  his  grand-daughter  and  her 
husband,  with  whom  he  was  living  at  the  time,  and  which  were 
to  accord  with  his  dehberate  and  expressed  intention  to  make  a 
gift  or  donation  of  his  property  to  her,  has  been  sustained  as  an 
extinguishment  or  forgiving  of  the  mortgage  debt  to  that 
extent.  It  was  objected  that  this  being  a  gift  inter  vivos,  de- 
livery and  acceptance  were  essential  to  its  validity,  and  that  as 
there  vr as  in  such  a  case  no  dehvery  it  could  not  take  effect. 
Christiancy,  J.,  said :  "  Doubtless  such  is  the  rule  where  the 
gift  consists  of  tangible  personal  property  which  admits  of 
actual  delivery;  and  the  same  rule  would  probably  apply 
where  the  note  or  bond  of  a  thu\l  person  is  the  suljject  of  the 
gift.  Whether  if  the  whole  of  the  mortgage  debt,  in  the 
present  case,  had  been  the  subject,  delivery  of  the  note  and 
mortgage,  or  one  of  them,  would  not  have  been  essential,  we 
need  not  inquire.  In  the  present  case  it  was  but  a  part  of  the 
sum  secured  by  the  note  and  mortgage ;  and  the  attempted 
donation  was  to  the  debtors  themselves.     And  it  is  difficult  to 

lid.    See  2    Story's    Eq.   g§  1100         2aoud  v.  Clinkerhead,  8  B.  Mon. 

and    1101;    Strong   v.  WUliams,  13  398;  Fort  v.  Gooding,  9  Barb.  371. 
Mass.  392;  Willis  v.  Dumi,  Wright,         3Clark  v.  Bogardus,  13  Wend.  67. 

133.  See  Close  v.  Van  Husen,  19  Barb.  505. 


350  CONVENTIONAL   LIQUIDATIONS    AND   DISCnAEGES. 

conceive  liow  any  delivery  could  have  been  made.  But  it  is 
said  tliat  there  must  have  been  a  delivery  of  the  papers  or  of  a 
release  or  receipt  for  the  portion  of  the  debt  intended  to  be 
given ;  because  without  something  of  this  kind,  it  would  have 
been  in  the  power  of  the  donor  to  retract,  and  this  he  might 
doubtless  have  done,  if  this  had  been  an  executory  agreement 
or  undertaldng  to  make  this  gift.  But  here  the  purpose  and 
intention  of  making  the  gift  was  fully  executed,  and  by  one  of 
the  donees  actually  accepted  at  the  time ;  and  the  acceptance  by 
the  other  of  the  extinguishment  of  a  part  of  the  debt  against 
himself,  may  be  very  safely  presumed.  And  if  it  remained  in 
the  power  of  the  donor  to  retract,  it  would  have  been  equally 
so,  for  aught  we  can  discover,  had  a  release  been  given,  there 
being  no  consideration,  and  under  our  statute,^  which  makes  the 
seal  no  more  than  frima facie  evidence  of  a  consideration.  The 
want  of  consideration  could,  therefore,  in  either  case,  have  been 
shown.  As  the  debt  which  was  the  subject  of  the  gift,  when 
considered  with  reference  to  the  fact  that  the  donee  was  the 
debtor,  and  that  only  part  ot  the  debt  was  attempted  to  be 
given,  did  not  admit  of  actual  delivery,  and  as  all  was  done  that 
could  well  be  done,  under  the  circumstances,  to  render  the  gift 
effectual,  we  do  not  think  the  act  and  intention  of  the  donor 
should  be  defeated  merely  because  the  subject  did  not  admit  of 
an  actual  or  technical  deUvery."  "^ 

A  delivery  is  so  essential  to  the  validity  of  a  gift  that  its 
place  cannot  be  supplied  by  a  formal  declaration  of  the  donor's 
executory  intention,  although  in  writing.*  The  intention  to  dis- 
charge by  gift  a  debt  in  the  form  of  a  note,  bond  or  the  like 
should  be  executed  by  an  actual  surrender  of  the  instrument, 
or  by  release.^ 

iCom.  L.  of  Mich.  1871,  §  5947.  Wentz  v.  De  Eaven,  1  S.  &  R.  312; 

2Green  V.  Langdon,  28  Mich.  221.  Mitchell    v.    Wilson,  3    Penn.    405; 

sphimstead's  App.   4  S.  &  R.  515;  Duffield  v.  Elwees,  1  Bligh.  497;  Dow 

Wheatley  v,  Abbott,  32  Miss.    353;  v.  Hicks,  1  Dowl.  &  Clark,  11;  Lacy 

Hvinter    v.    Hunter,    19  Barb.    681;  v.  Lacy,  7  Pa.  St.  251 ;  1  Smith's  Lead. 

Noble  V.  Smith,  2  John.  52;  Cook  v.  Ca.    1st  pt.    *469.      In  the  case  of 

Husted,  12  John.  188;  Davis  V.  Boyd,  Cami^belFs  Estate,    supra,    Gibson, 

6  Jones,  219.  C.  J.,  said  that  "the  gift  of  a  bond, 

4  Kidder  v.  Kidder,  33  Pa.  St.  268;  note  or  other  chattel  cannot  be  made 

Campbell's    Estate,   9    Pa.    St.   100;  by  words  in  futuro  or  by  words  in 


PAYMENT.  357 

PATiiEXT  BY  EETAiN'ER. —  Payment  or  satisfaction  of  a  debt 
may  result  as  a  legal  effect  of  the  debtor  having  conferred  on 
him  in  some  character  the  duty  or  right  to  receive  payment. 
This  conclusion  rests  upon  the  ground  that  when  the  same  hand 
is  to  pay  and  receive  the  money,  that  which  the  law  requires  to 
be  done  shall  be  deemed  to  bo  done ;  and,  therefore,  that  such 
debt  when  due  from  an  administrator,  for  instance,  shall  be  as- 
sets de facto,  to  be  accounted  for  in  the  probate  account.^ 

When  a  testator  makes  his  debtor  executor,  it  is  a  release  at 
law,  but  the  testator  may  reserve  the  debt,  and  pa3^ment  be  en- 
forced by  the  part}^  to  whom  it  is  bequeathed  under  the  fiction 
of  a  promise  to  him.^  Such  appointment  does  not  extinguish 
the  debt,  nor  a  mortgage  secm-ity  for  it,^  but  it  becomes  assets 
in  his  hands,*  especially  if  there  is  a  deficiency  to  pay  debts.* 

An  executor  or  other  trustee  for  the  distribution  of  moneys 
to  pay  debts,  legacies,  etc.,  may  retain  for  a  debt  owing  him 
from  the  trust  funds,  and  ma}^  also  retain  for  the  benefit  of  the 
trust  any  sum  due  from  a  beneficiary. 

A  personal  representative  may  retain  for  his  debt  b}^  with- 
holding within  the  period  allowed  by  the  statute  of  limitations, 
a  sufficient  amount  from  the  moneys  coming  to  his  hands,  and 
is  entitled  to  due  credit  therefor  in  the  settlement  of  his  ac- 
counts,^ on  such  proof  as  would  authorize  a  recovery  upon  it.'^ 
And  such  retainer  will  be  presumed  from  sufficient  assets  com- 
ing into  his  hands  which  were  susceptible  of  conversion  into 
money.^    His  debt,  however,  -will  not  be  deemed  extinguished 

presenti,    unaccompanied   by   such  Jewett,  2  Met.  168;  Wilson  v,  Wil- 

delivery  of  the  possession  as  makes  son,  17  Ohio  St.  150. 
the  disposal  of    the    thing  irrevo-         2  Fishel  v.  Fishel,  7  Watts,  44 
cable."  3  Bacon  V.  Fairnian,  6  Conn.  121; 

1  Ipswich  Manufacturing    Co.    v.  CoUard  v.  Donaldson,   17  Oliio,  264. 

Story,  5  Met.  310;  Stevens  v.  Gay-  See  Pratt  v.  ISTortham,  5  Mason,  95. 
lord,  11  Mass.  255;  Kinny  v.  Ensign,         ^"Winship  v.  Bass,  12  Mass.  198. 
18  Pick.   232;  Winship  v.  Bass,   12         5  Mar\in  v.  Stone,  2  Cow.  781. 
Mass.  109:  Wankford  v.  Wankford,         6Balson  v.  Morell,  3   Sneed,  608; 

1   Salk.   309;  Chatham  v.   Ward,  1  Hamner  t.  Hamner,   3  Head,  398; 

Bos.  &  Pul.  630;  Freakley  v.  Fox,  9  Byron   v.    Fleming,    2    Head,   658; 

B.  &  C.  130;  Taylor  v.  Deblois,  4  Ma-  Harrison  v.  Henderson,  7  Tenn.  515. 
son,  131;  Bryant  v.  Smith,  10  Cush.         ^Kerksey  v.  Kerksey,  41  Ala.  626. 
169;  Hunt  v.  Nevers,  15  Pick.  500;         8  Glenn  v.  Glenn,  41  Ala.  571. 
15  id.  54;  1  Allen,  153.  See  lUsley  v. 


358 


CON^'ENTION.U.    LIQUIDATIONS    AND    DISCHAl^GES. 


by  his  receipt  of  assets  suflBcient  to  discharge  it,  but  which  he 
fails  to  reduce  to  money  and  turns  over  to  liis  successor.^  An 
executor  de  son  tort  cannot  retain  for  his  own  debt.'-^ 

Sureties  in  a  bond  who  pay  it  off  after  the  death  of  the  prin- 
cipal are  entitled  to  rank  as  specialt}'-  creditors  of  the  principal ; 
and  if  they  be  administrators  of  his  estate,  may  retain  what- 
ever they  pay  on  account  of  such  suretyship  out  of  assets  that 
come  to  their  hands  as  administrators,  against  other  specialty 
creditors.^  A  retainer  may  either  be  pleaded  or  given  in  evi- 
dence under  the  plea  of  ^^Zt?/?^  administravit.* 

Payment  in  counterfeit  money,  or  bills  of  broken  banks. — ■ 
It  accords  with  principles  governing  in  like  cases,  and  certainly 
with  a  decided  weight  of  authority,  to  hold  that  the  party  paying 
by  legal  unplication  warrants  the  genuineness  of  what  he  pays  as 
money ;  ^  unless  the  character  of  the  transaction,  or  the  accompa- 
nying circumstances,  show  a  different  intention.®  This  rule  is  now 
recognized  as  an  exception  to  that  of  caveat  em])tor^  but  it  is  evi- 
dent it  was  not  always  so.''    This  warranty  of  genuineness,  how- 


1  Harrison  v.  Anderson,  supra; 
Ross  V.  Wharton,  10  Yerg.  193. 

•■2  Turner  v.  Child,  1  Dev.  331. 

3PoweU"s  Exrv.  W]iite,  11  Gratt. 
309.  See  Copes  v.  Middleton,  1  Turn. 
&  Russ.  224;  Jones  v.  Davids,  4 
Russ.  277. 

4  Evans  v.  Howes,  Hayw.  Conf .  R. 
by  Bat.  473. 

5  Watson  V.  Cresop,  1  B.  Mon.  195; 
Edmunds  v.  Digges,  1  Gratt.  359; 
Hargrave  v.  Dusenberry,  2  Hawkes, 
326;  Fogg  v.  Sawyer,  9  N.  H.  365; 
Buck  V.  Doyle,  4  GiU,  478;  lu  Coun- 
terfeit Bank  Notes,  4  Dev.  &  Bat. 
212;  Goodrich  v.  Tracy,  43  Vt.  314. 

6  See  Dakin  v.  Anderson,  18  Ind. 
52.  In  Orcliard  v.  Hughes,  1  Vv^all. 
73,  it  was  held  to  be  no  defense  to  a 
suit  for  debt,  that  the  debt  arose 
from  the  receipt  of  the  bills  of  a 
bank  chartered  illegally,  and  for 
fraudulent  purposes,  and  that  the 
bills  Avere  void  in  law,  and  finally 
proved  worthless  in  fact;  the  bills 


themselves  having  been  actually 
current  at  the  time  the  defendant 
received  them,  and  tliey  not  liaving 
proved  worthless  in  liis  hands,  and 
he  not  being  bound  to  take  them 
back  from  the  person  to  whom  he 
IDaid  them. 

■'In  Wade's  Case,  5  Co.  115,  it  was 
said:  "It  was  adjudged  between 
Vare  and  Studley,  that  when  the 
lessor  demanded  rent  of  the  lessee, 
according  to  the  condition  of  re- 
entry, and  the  lessee  payeth  the  rent 
to  liis  lessor,  and  he  received  it  and 
put  it  in  his  purse,  and  afterwards 
in  looking  it  over  again  at  the  same 
time,  he  found  amongst  the  money 
that  he  had  received,  some  counter- 
feit pieces,  and  thereupon  ref ysed  to 
carry  away  the  money,  but  re- 
entered for  the  condition  broken,  it 
was  adjudged  the  entry  was  not  law- 
ful; for  when  the  lessor  had  ac- 
cepted the  money,  it  was  at  his  peril, 
and  upon  that  allowance  he  shall  not 


PAYMENT. 


359 


ever,  is  not  absolute ;  but  the  general  current  of  authority  is  that 
the  payer  vrarrants  the  genuineness,  to  such  an  extent,  that  he 
is  bound  to  make  it  good,  if  found  bad,  and  is  returned  within  a 
proper  time.^ 

It  is  a  special  warranty,  requiring  the  return  of  the  thing  war- 
ranted, and  involving  an  obligation  of  the  debtor  to  pay  the 
amount  again  in  good  money ;  but  leaving  the  creditor,  of  com-se, 
the  option,  on  returning  the  spurious  money,  to  proceed  on  the 
statu  quo,  as  upon  a  rescission.  The  payment  in  either  case,  to 
the  extent  of  the  counterfeit  money,  is  treated  as  a  nulhty  when 
it  has  been  restored.- 


take  exception  to  any  part  of  it." 
And  it  is  said  in  Shepherd's  Touch- 
stone, 140,  in  respect  to  mortgages: 
"If  the  payment  be  made,  part  of 
it  with  counterfeit  coin,  and  the 
party  accept  and  put  it  up,  this  is  a 
good  payiTient,  and  consequently  a 
good  performance  of  the  condition." 

lAtwood  V.  Cornwall,  28  Mich. 
336;  Wingate  v.  Wudlinger,  50  Ind. 
620;  Samuels  v.  King,  id.  527;  Steb- 
bins  V.  Stebbins,  51  Ind.  594.  See 
Alexander  v.  Byers,  19  Ind.  30. 

2 Id.;  Markle  v.  Hatfred,  2  John. 
453;  In  Counterfeit  Bank  Notes,  1 
Dev.  &  Bat.  512;  Gihnan  v.  Peck,  14 
"Vt.  516;  Thomas  v.  Todd,  6  Hill, 
340;  Tony  v.  Baxter,  13  Vt.  452; 
PendaU's  Ex'r  v.  Northwestern 
Bank,  7  Leigh,  617;  Eaymond  v. 
Baar,  13  S.  &  R.  318;  Bank  of  St. 
Albans  v.  Farmers'  &  Mech.  Bank, 
10  Vt.  141.  In  Watson  v.  Creso]>,  1 
B.  Mon.  195,  Judge  Ewing  said;  "It 
must  be  presumed  that  he  who 
passes  a  bill  as  money,  passes  it  as 
genuine,  and  the  law  implies  an  as- 
sumpsit or  warranty  that  it  is  (2 
John.  458;  15  John.  241);  and  if  the  bill 
shoidd  be  counterfeit  and  worthless, 
this  implied  promise  is  immediately, 
upon  j)assing  the  bill,  broken,  and 
an  action  lies  for  its  breach;  nor 
does  it  matter  whether  he  who 
passes  it  knows  that  it  is  counterfeit 


or  not.  2  John.  R.  supra.  The  ac- 
tion is  not  an  action  for  fraud,  but 
for  breach  of  promise  implied  by 
law.  And  to  sustain  this  form  of 
declaring  it,  would  certainly  be  un- 
necessary to  prove  that  the  note  was 
tendered  back,  as  it  goes  for  breach 
of  promise,  and  not  for  restitution 
of  the  consideration  upon  a  disaffirm- 
ance of  the  contract  of  payment. 

"As  the  first  count,  in  the  case 
under  consideration,  is  a  count 
on  the  implied  prmnise,  the  proof 
justified  the  recovery  without  any 
evidence  that  the  bill  was  tendered 
back  to  the  defendants  before  suit 
brought.     .     .     . 

"We  are  also  satisfied  that  if 
money  or  other  bills  which  pass  and 
are  received  as  money,  be  the  con- 
sideration given  for  a  countei'feit 
bUl,  that  it  may  be  recovered  back 
on  an  indebitatits  count,  for  so 
much  money  had  and  received. 
Payment  for  such  a  bill  must  be  re- 
garded as  a  payment  by  mistake  for 
a  thing  of  no  value,  but  which  was, 
at  the  time  it  was  received,  believed 
to  be,  and  imported  on  its  face,  to 
be  of  intrinsic  worth.  2  John.  458. 

"But  this  form  of  declaring  pro- 
ceeds on  the  ground  of  a  disaffirm- 
ance of  the  contract  and  a  restitu- 
tion of  the  thing  given  in  exchange. 
It  is  an  equitable  remedy,  and  to 


360 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


The  tendency  of  modern  decisions  is  to  require  reasonable 
vigilance  in  the  receipt,  and  prompt  diligence  in  the  retm^n,  of 
counterfeits,  or  in  giving  notice  to  the  payer,  that  he  may  pro- 
tect himself  against  prior  parties,  "What  is  diligence  is  deter- 
mined with  reference  to  the  facts  of  each  case,  but  upon 
analogies  drawn  from  the  law  of  commercial  paper.  A  delay 
of  months  or  even  of  a  few  days  may  be  fatal  to  the  right  of 
recourse  to  the  payee.^  Any  unnecessary  delay  beyond  such 
reasonable  time  as  would  enable  the  taker  to  inform  himself  as 
to  its  genuineness  operates  as  a  fraud  on  the  payer,  and  prevents 
a  recovery .2 


entitle  the  plaintiff  to  recovery,  if 
anything  of  value  has  been  received, 
it  must  be  shown  that  it  was  ten- 
dered back  before  the  action  was 
brought. 

"A  counterfeit  bill  is  cei'tainly  of 
no  intrinsic  value;  it  would  be  as 
worthless  in  the  hands  of  the  de- 
fendants as  in  that  of  the  plaintiffs, 
and  according  to  the  rule  laid  down, 
it  would  seem  unnecessary  to  sh  nv 
that  it  was  tendered  back,  even  in 
this  form  of  declaring.  But  whether 
it  was  or  not,  it  is  not  now  necessary 
to  determine,  as  the  recovery  was 
proper  on  the  first  count."  This 
case,  it  is  respectfully  suggested, 
would  not  now  be  regarded  as  cor- 
rectly decided,  for  it  proceeds  upon 
a  ground  fundamentally  erroneous; 
namely,  that  a  counterfeit  bill 
"  would  be  as  worthless  in  the  hand 
of  the  defendants  as  in  that  of  the 
plaintiffs."  An  absolute  warranty 
of  genuineness  is  assumed  doubtless 
on  that  theory.  The  consideration 
appears  to  have  been  overlooked 
that  where  a  counterfeit  bill  has 
been  innocently  paid  and  received, 
the  prompt  return  of  it  will  enable 
the  party  who  had  paid  it  to  restore 
it  to  the  person  from  whom  he  re- 
ceived it,  and  thus  obtain  its  nomi- 
nal amount  in  good    money.     The 


implied  warranty  requires  such, 
restitution. 

1  Raymond  v.  Baar,  13  S.  &R.  318; 
Samuels  v.  King,  50  Ind.  527  ? 
Thomas  v.  Todd,  6  HiU,  340;  Law- 
renceburgh  Nat.  Bank  v.  Stevenson, 
51  Ind.  594;  Corn  Exchange  Nat. 
Bank  v.  Nat.  Bank  of  Republic,  78 
Pa.  St.  233;  Kenney  v.  First  Nat. 
Bank,  50  Barb.  112;  Camidge  v. 
Allenby,  6  B.  &  C.  373;  Bank  of  St. 
Albans  v.  Farmers'  &  Mech.  B'k,  10 
Vt.  140;  Pendall's  Ext  v.  The  North- 
western Bank,  7  Leigh,  617;  Union 
Bank  of  Chicago  v.  Baldenwick,  45 
111.  375;  Pomphrey  v.  Eyre,  Tappan 
(Ohio),  283.  See  Young  v.  Adams,  6 
Mass.  187;  17  id.  28. 

2Atwoodv.  Cornwall,  28]\Iich.  336. 
In  the  opinion  in  tliis  case.  Judge 
Campbell  discusses  the  legal  relation 
of  payer  and  receiver  of  counterfeit 
money  with  his  usual  ability  and 
learning.  He  says:  "The  decisions 
applied  to  bank  notes  have  all  gone 
upon  the  analogy  of  ordinary  nego- 
tiable securities.  There  is  no  mod- 
ern decision  which  we  have  been 
able  to  find  which  draws  any  line  in 
dealing  with  payments  in  counter- 
feits, or  refers  specially  to  that  coin 
or  paper  which  the  law  deals  with  as^ 
money  —  receivable  not  by  currency 
merely  and  by  consent,  but  by  stat- 


PAYMENT. 


361 


"When  payment  is  made  in  the  bills  of  insolvent  banks,  or  in 
other  depreciated  conventional  currency,  the  question  of  who 
should  bear  the  loss  may  arise  under  various  circmustances.     If 


ute  and  by  obligation.  The  de- 
cisions, in  giving  reasons  for  their 
results,  were  originally  based  on  the 
doctrine  that  payments  by  negoti- 
able paper  were  in  a  measure  condi- 
tional, and  not  absolute  in  all  cases, 
but  dependent  upon  the  possibility 
of  getting  pajTnent  by  dihgence. 
And  the  distinction  between  coun- 
terfeit and  otherwise  valueless  paper 
has  not  always  been  kept  up  nor 
well  defhied.  See  authorities  in 
Story  on  Cont.  §411;  Edwards  on 
Bills,  20.J-7  and  notes. 

"The  decisions,  however,  agree 
generally  that  a  party  who  would 
otherwise  be  able  to  recover  back  the 
amount  of  bad  money  passed  upon 
him,  will  be  debarred  of  his  ac- 
tion by  lack  of  diligence.  And  it 
is  much  to  be  regretted  that  upon 
the  whole  subject  there  are  more 
dicta  than  decisions.  It  is  necessary, 
in  order  to  discover  the  real  diffi- 
culties of  the  matter,  to  consider 
how  the  doctrine  bears  practically 
on  the  business  of  the  community. 
The  paper  which  is  in  controversy 
is  for  all  legal  purposes  of  currency 
on  a  similar  footing  Avith  coin;  that 
is  to  say,  it  is  a  legal  tender,  and  all 
creditors  are  compelled  to  receive  it 
in  payment.  They  do  not  exercise 
an  option  in  taking  it,  as  they  do  in 
receiving  other  paper.  Inasmuch  as 
they  refuse  a  tender  at  their  peril, 
the  law  assumes,  and  business  is 
done  on  the  basis,  that  every  busi- 
ness man  will  become  generally  fa- 
miliar with  the  appearance  of  the 
money  of  the  countrj-,  so  as  to  be 
able  to  exercise  a  judgment  upon  it. 
And  while  those  who  are  constantly 
handling  money  in  banks  and  ex- 


change offices  cidtivate  their  facvd- 
ties  more  thoroughly  in  a  knowledge 
of  currency,  aU  persons  are  supposed 
to  have  some  such  knowledge, — 
sufficient  to  enable  them  to  do  busi- 
ness with  ordinary  security.  And  it 
is  not  to  be  expected  that  among  ordi- 
naiy  dealers  one  will  have  any  great 
advantage  over  others;  while  all 
have  the  means  of  access,  in  every 
community,  to  some  persons  who 
have,  by  their  peculiar  experience, 
the  means  of  aiding  the  judgment 
of  those  of  less  experience. 

"It  is  not  customary  and  cannot 
be  expected  that  persons  will  note 
down  all  the  bills  which  they  receive 
and  put  ear-marks  on  them,  so  that 
they  can  recall  the  persons  from 
whom  they  are  received.  Nothing 
would  have  a  surer  tendency  to 
hinder  the  negotiability  of  genuine 
bills  than  such  ear-marks;  while  the 
delay  and  trouble  of  doing  so  would 
be  a  great  liindrance  to  the  dispatch 
of  business.  Most  currency  gets  into 
circulation  through  the  medium  of 
banks  and  other  instrumentalities 
capable  of  detecting  bad  money;  and 
where  counterfeit  money  is  circu- 
lated, it  is  usually  uttered  in  such 
quarters  as  to  render  it  difficult,  if 
not  impossible,  to  trace  it  back  to  its 
source.  The  innocent  taker  of  such 
paper  is  not  generally  g"uilty  of  any 
culpable  negligence;  and  between 
several  successive  takers  it  is  im- 
possible to  hold  one  any  more  in 
fault  than  the  rest,  for  not  detect- 
ing the  cheat.  It  is  often  but  a  sus- 
picion of  forgery  that  induces  a  taker 
to  notice  from  whom  he  receives  a 
particular  bill;  and  when  this  sus- 
picion is  entertained,  ami  not  com- 


362 


CONVEA^TIONAL    LIQUIDATIONS    AND    DISCnAKGES. 


both,  parties  deal  in  the  currency  in  question  as  uncurrent 
mone}^,  it  is  like  a  dealing  in  a  commodity.  And  if  a  debtor 
pays  as  money  bank  notes,  knowing  the  bank  to  be  insolvent, 


municated  to  the  person  from  whom 
the  paper  is  received,  its  couceal- 
inent  may  easily  oj)erate  as  a  f  rami 
upon  him,  by  preventing  him  from 
tracing  it  back.  This  would  create 
a  strong  moral  equity  in  his  favor, 
whatever  the  law  may  determine  in 
regard  to  it. 

"  At  common  law,  such  authority 
as  we  have  seems  to  indicate  that,  as 
between  two  innocent  parties,  the 
taker  of  counterfeit  coin  cannot 
claim  recourse  against  him  from 
whom  he  took  it.  Shep.  Touchstone, 
140;  Wade's  Case,  5  Co.  114.  This 
must  have  been  on  the  ground  al- 
ready referred  to,  that  parties  in 
equal  equity  shall  not  be  disturbed. 
The  common  law  and  equity  are 
botli  full  of  instances  where  persons 
dealing  honestly,  on  an  equal  foot- 
ing, and  with  equal  means  of  knowl- 
edge, are  left  where  their  dealings 
have  placed  them.  Neither  having 
recourse  against  the  other  to  undo 
their  agreements  and  transactions. 
And  while  in  Markle  v.  Holfield,  2 
J.  R.  455,  Kent,  C.  J  ,  doubts  the 
propriety  of  the  doctrine,  the  case 
called  for  no  such  doubts,  and  no  de- 
cisions were  found  shaking  it.  It 
cannot  be  denied  that  there  is  much 
force  in  the  doctrine  which  requires 
a  party  to  be  vigilant  before  taking 
bad  money.  That,  after  all,  is  the 
only  rule  likely  to  prevent  its  circu- 
lation. A  person  who  takes  it  with- 
out dispute,  and  examines  it  after- 
wards, if  he  is  able  to  remember 
from  whom  he  took  it,  and  is  al- 
lowed to  recover  back  the  amount, 
may  save  himself,  but  will  usually 
subject  an  equally  innocent  party  to 
loss.     And  it  is  also  manifest,  that  if 


he  is  ready  to  testify  positively  from 
whom  he  received  it,  his  adversary 
cannot  generally  be  as  certain 
whether  or  not  he  paid  it  out,  and 
cannot,  by  his  own  oath  alone,  even 
if  he  is  certain,  convict  a  false  wit- 
ness of  perjury,  It  will  never  do, 
in  laying  down  rules,  to  overlook 
the  consequences. 

' '  If  the  rule  of  liability  is  to  be  en- 
forced, it  cannot  be  justly  enforced 
without  requiring  a  degree  of  vigi- 
lance conforming  to  the  occasion.  If 
payment  in  what  is  supposed  to  be 
legal  tender  paper  is  to  be  regarded 
as  contingent,  and  not  absolute,  the 
receiver  should  be  regarded  as  hav- 
ing elected  to  retain  it,  unless  he 
uses  speedy  and  active  diligence  to 
determine  its  character,  and  to  no- 
tify the  giver  that  he  may  protect 
himself  against  pi'ior  parties.  In 
Camidge  v.  Allenby,  6  B.  &  C.  373,  a 
party  who  kept  broken  bank  bills 
seven  days  Avithout  action,  was  held 
estopped.  In  Jennison  v.  Parker,  7 
Mich.  355,  this  rule  of  diligence  was 
applied,  where  a  debtor  had  indorsed 
a  note  as  collateral  security,  and  it 
was  protested  as  against  him.  In 
Phoenix  Ins.  Co.  v.  AUen,  11  Mich. 
501,  and  Phoenix  Ins.  Co.  v.  Gray, 
13  Mich.  191,  it  was  held  a  party  re- 
ceiving sight  pajier  was  bound  to 
forward  it  without  any  delay,  be- 
yond what  was  necessary  in  the  or- 
dinary course  of  business,  or  com- 
pelled by  circumstances.  The  rule 
gathered  from  the  cases  by  Mr.  Ed- 
wards, is  that  in  regard  to  forged 
paper  also,  there  must  be  ift)  '  un- 
necessary delay.'  Edwards  on  Bills, 
207,  551.  It  is  entirely  safe  to  say 
that  a  person    taking    such    paper 


rAYME2;T.  363 

and  conceals  it  from  the  creditor  or  pcayee,  it  will  be  deemed  a 
fraud.^  But  there  are  various  aspects  in  which  an  innocent  pay- 
ment of  depreciated  or  worthless  cm-rency  may  be  viewed ;  that 
is,  though  both  the  payer  and  receiver  take  for  granted  it  is 
good,  and  may  be  equally  ignorant  of  any  fact  tending  to 
lessen  its  value;  first,  the  bank  may  be,  in  fact,  insolvent,  but 
had  not  stopped  payment;  second,  it  may  have  stopped  pay- 
ment, but  a  knowledge  of  it  not  have  reached  the  neighbor- 
hood where  the  payment  was  made,  and  the  bills  may  have 
continued  there  actually  current ;  third,  the  currency  used  may 
be  whoUy  worthless  or  only  depreciated. 

Mr.  Chitty  says :  "  It  should  seem  that  if  in  discounting  a  note 
or  bill,  the  promissory  note  of  country  bankers  be  delivered, 
after  they  have  stopped  pajanent,  but  unlmown  to  the  parties, 
the  person  taking,  unless  guilty  of  laches,  might  recover  the 
amount  of  the  discounter,  because  it  must  be  impHed  that  at  the 
time  of  the  transfer  the  notes  were  capable  of  being  received,  if 
duly  presented  for  payment."  ^  And  Mr.  Story  says  of  a  pay- 
ment in  the  bills  of  an  insolvent  iDank,  where  both  parties  are 
equally  mnocent,  and  equall}^  ignorant  that  the  bank  had  failed 
and  become  insolvent,  that  the  weight  of  reasoning  and  the 
weight  of  authority  seem  to  be  in  favor  of  the  payer  bearing  the 

should  not,  without  some  adequate  opinion  of  any  hanker  upon  it,  al- 

excuse,  retain  such  paper  without  though  several  times  wliere  he  had 

action,  beyond  such  time  as  would  the  means  of  doing  so.     It  certainly 

give  him  reasonable  opportunity  to  can  never  be  contemplated  that  a 

infoi-m  liimseK,  without  inconven-  j)erson,  whatever  may  be  the  extent 

ience,  or  neglect  of  other  business,  of  his  dealings,  can  keep  alive  the 

to    attend  to  it.     The  necessity  of  lialsility    of    another    upon    paper 

promptness  exists  in  all  cases;  and  taken  from  him,  without  some  use 

where  it  appears  that  there  has  been  of  his  opportunities  for  information, 

any  delay,  beyond  what  was  reason-  And  when  it  affirmatively  appears 

ably  adequate  under    the    circum-  that  he  has  neglected  his  opportuui- 

stances,  to  enable  the  party  to  in-  ties,  there  is  no  question  left  for  a 

form  himself,  he  should  not  recover,  jury.     And  in  such  cases,  therefore, 

And  there  should  be  some  care  in  the  result  is  one  of  law."    See  1st 

the  taking  as  well  as  afterwards.  Nat.    Bank  v.   Ricker,   71   111.   439; 

"In  the  present  case,  it  appears  Simms  v,  Clark,  11  HI.  137;  United 

from  the  plaintiff's  testimony,  that  States  Bank  v.  Bank  of  Georgia,  10 

he  kept  this  money  on  his  person  Wheat.  333. 

more  than  five  months,  without  at  i  Story  on  Prom.  Notes,  §  118. 

any  time  attempting  to  obtain  the  2  Chitty  on  Bills,  21:7. 


864:  CONVEXTIOXAL    LIQUIDATIONS    AND    DISCHARGES. 

loss.  The  decisions  in  I^ew  York,^  Wisconsin,^  Vermont,^  l^ew 
Hampshire/  Illinois,^  Maine,^  South  Carohna,"^  and  Ohio,^  are  in 
accord  v/ith  that  doctrine.  But  in  Pennsylvania,^  Tennessee,'*^ 
and  Alabama,"  it  has  been  held  that  such  loss  should  be  borne 
by  the  receiver.^^ 

A  bank  fails,  and  for  the  effect  of  depriving  its  bills  of  the 
distinctive  character  of  money,  becomes  insolvent,  when  it 
ceases  to  redeem  them  with  legal  tenc|pr  money.^*  Bank  notes 
are  the  representative  of  money,  and  circulate  as  such  by  the 
general  consent  and  usage  of  the  community.  But  this  con- 
sent and  usage  are  based  upon  the  convertibility  of  such  notes 
into  coin,  at  the  pleasure  of  the  holder,  upon  their  presentation 
to  the  bank  for  redemption.  This  fact  is  the  vital  principle 
which  sustains  their  character  as  money.  So  long  as  they  are 
in  fact  what  they  purport  to  be,  payable  on  demand,  common 
consent  gives  them  the  attributes  of  money.  But  upon  the  fail- 
ure of  the  bank  by  whicli  they  were  issued ;  when  its  doors  are 
closed ;  and  its  inability  to  redeem  its  biUs  is  openly  averred, 
they  instantly  lose  their  character  of  money,  their  circulation 

1  Lightbody  v.  Ontario  Bank,  11  373;  Owenson  v.  Morse,  7  T.  R.  64; 
Wend.  1;  affirmed,  13  Wend.  107;  Ex  parte  Blackburn,  10  Ves.  204; 
Houghton  V.  Adams,  18  Barb.  545.  Emly  v.  Lye,  15  East,  7.     In  Corbit 

2  Townsend  v.  The  Bank  of  Racine,  v.  Bank  of  Smyrna,  2  Harr.  235,  it 
7  Wis.  185.  was  held  that  the  receipt  by  a  bank 

^Gilman    v.    Peck,    11    Vt.    516;  for  deposit  as  money  of  the  bills  of  a 

Wainwright  v.  Webster,  11  Vt.  576.  bank  that  had  just  suspended,  but 

4  Fogg  V.  Sawyer,  9  N.  H.  365.  before  either  the  bank  or  the  de- 

5  Magie  v.  Carmack,  13  111.  289.  positor  was  informed  of  the  failure, 

6  Frontier  Bank  v.  Morse,  22  Me.  was  at  the  risk  of  the  bank  receiving 
gg  them.     And  a  distinction  was  taken 

7  Harley  v.  Thornton,  2  Hill,  509.      between  the  receipt  of  bank  bills  for 
^Westfall  V.  Braley,  10  Ohio  St.      a    contemporaneous    debt    or    con- 

188;  but  see  Imbush  v.  Mechanics'  sideration,  and  receiving  them  for  a 

Bank,  1  West.  L.  J.  49.  precedent  debt.     In  the  former  case, 

8  Bayard  v.  Shunk,  1  Watts  &  S.  the  bills  are  supposed  to  be  the  thing 
94.  bargained  for,  and  therefore  at  the 

10 Scruggs  V.  Gass,  8  Yerg.  175;  but  risk  of  the  receiver;  but  when  re- 
Bee  Ware  v.  Street,  2  Head,  609.  ceived  for  a  precedent  debt,  it  is  not 
n  Lowrey  v.  Murrell,  2  Port.  282.  discharged  unless  the  bills  are  of 
12  See  also  Young  v.  Adams,  6  solvent  banks  when  received. 
Mass.  182;  Edmunds  v.  Diggs,  1  13  Townsend  v.  The  Bank  of  Ra- 
Gratt.  359;  Phillips  v.  Blake,  1  Met.  cine,  7  Wis.  185;  Lightbody  v.  On- 
156;  Camidge  v.  Allenby,  6  B.  &  C.  tario  Bank,  11  Wend.  1;  13  id.  107. 


PAYMENT. 


3G5 


as  currency  ceases,  with,  the  usage  and  consent  upon  wliicli  it 
rested,  and  the  notes  become  the  mere  dishonored  and  depreci- 
ated evidences  of  debt.  When  this  change  in  their  character 
takes  place,  the  loss  must  necessarily  fall  upon  him  who  is  the 
owner  of  them  at  the  time ;  and  this,  too,  whether  he  is  aware 
or  unaware  of  the  fact.  His  ignorance  of  the  fact  can  give 
liim  no  right  to  throw  the  loss,  which  he  has  already  incurred, 
upon  an  innocent  third  party.'  Therefore,  if  such  bills,  after 
failure  of  the  bank,  are  paid  out  and  received  as  money,  by 
persons  ignorant  of  the  fact,  the  receiver  is  entitled  to  retm^n 
them,  and  require  theu*  amount  in  good  money  on  the  ground  of 
mistake.^ 

The  very  time  when  a  banl^:  announces  its  failure  by  closing 
its  doors  and  ceasing  to  redeem,  is  that  at  which  its  failure  is 
deemed  to  occur,  without  reference  to  its  antecedent  real  con- 
dition, between  parties  having  no  cause  to  anticipate  that  event.^ 

The  doctrine  that  the  loss  falls  upon  him  in  whose  hands  the 


1  WestfaU  V.  Braley,  10  Ohio  St. 
188. 

2 Id.;  Frontier  Bank  v.  Morse,  23 
Me.  88;  Roberts  v.  Fisher,  43  N.  Y. 
159;  Leger  v.  Banoffe,  2  Barb.  475; 
Baldwin  v.  Van  Deusen,  37  N.  Y. 
487. 

3  Ware  v.  Street,  2  Head,  609.  In 
this  case  a  payment  in  bank  bills 
was  made  on  the  12th  of  July,  1858, 
late  in  the  evening,  and  was  held 
^ood,  although  the  susiDension  was 
resolved  upon  that  same  evening, 
because  not  announced  until  the 
next  day.  The  court  say:  "The 
loss  must  faU  upon  one  of  two  inno- 
cent men,  and  the  law  must  control 
it.  At  the  time  the  payment  was 
made  the  notes  were  circulating  as 
currency  and  considered  good  by 
the  communitj'.  But  they  were  in 
fact  of  no  value  at  the  hour  they 
were  paid  out,  although  a  few  hours 
before  they  were  convertible  into 
specie.     .    .    . 

"The  supposed  commercial  inter- 
est of  our  country,  and  the  general 


convenience  of  the  people,  have  pro- 
duced a  course  of  legislation  by 
which  bank  paper  has  become  the 
circulating  medium,  and  the  stand- 
ard of  value,  instead  of  specie. 
True,  it  has  not  been  made  a  lawful 
tender  and  cannot  be  without  a 
change  of  the  constitution.  But  by 
almost  universal  consent  it  has  be- 
come the  medium  of  exchange  and 
the  representative  of  property.  It 
has  taken  the  place  of  the  precious 
metals,  and  is  regarded  as  money. 
This,  however,  is  by  consent  and 
not  by  law.  No  man  is  bound  to 
receive  it  in  payinent  of  debts  or 
for  property.  But  if  it  gets  into  his 
hands  by  consent,  and  a  loss  comes 
by  failure  of  the  bank,  the  misfor- 
tune must  and  should  be  his  in 
whose  hands  it  hapi^ens  to  be  at  the 
time.  The  risk  must  foUow  the  pa- 
per, and  not  the  former  owners.  It 
passes  from  hand  to  hand  without 
recourse  except  in  cases  of  fraud  or 
concealment." 


3G6 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


bills  are  at  the  time  of  the  failure,  necessarily  involves  an  im- 
plied guaranty  in  every  payment  of  bank  bills,  that  at  that 
time  the  bank  has  not  suspended  or  failed,  unless  a  contrary 
intention  is  manifested. 

On  the  contraiy,  in  Pennsylvania,  and  some  other  states,  as 
before  stated,  where  a  payment  in  bank  bills  is  made  in  good 
faith,  the  acceptance  of  the  bills  is  not  deemed  to  be  upon  the 
faith  of  any  such  guaranty,  and  is  governed  by  the  rule  of 
caveat  emptor,  and  the  maxim  of  melior  est  conditio  defendentis} 


1  In  Bayard  v,  Shunk,  1  Watts  & 
S.  93,  Gibson,  C.  J. ,  expounds  and 
enforces  this  view  with  great  vigor 
of  language  and  logic.  He  says: 
"  Cases  in  which  the  bills  and  notes  of 
a  third  party  were  transferred  for  a 
debt,  are  not  to  the  purpose;  and 
most  of  those  which  have  been  cited 
are  of  that  stamp.  Where  the  par- 
ties to  such  a  transaction  are  silent 
in  respect  to  the  terms  of  it,  the 
rules  of  interpretation  are  few  and 
simple.  If  the  securities  are  trans- 
ferred for  a  debt  contracted  at  the 
time,  the  presumption  is  that  they 
were  received  in  satisfaction  of  it; 
but  if  for  a  precedent  debt,  it  is  that 
they  are  received  as  collateral  se- 
curity for  it;  and  in  either  case  it 
may  be  rebutted  by  direct  or  cir- 
cumstantial evidence.  But  by  the 
conventional  rules  of  business,  a 
transfer  of  bank  notes,  though  they 
are  of  the  same  mould  and  obliga- 
tion betwixt  the  original  parties,  is 
regulated  by  peculiar  principles,  and 
stands  on  a  different  footing.  They 
are  lent  by  the  banks  as  cash ;  they 
are  paid  away  as  cash ;  and  the  lan- 
guage of  Lord  Mansfield  in  Miller 
v.  Race,  1  Burr.  452,  was  not  too 
strong  wlien  he  said,  'they  are 
treated  as  money,  as  cash,  in  the  or- 
dinaiy  course  and  transaction  of 
business  by  the  general  consent  of 
mankind,  which  gives  them  the 
credit  and  currency  of  money  to  all 


intents  and  purposes;  they  are  as 
much  money  as  guineas  themselves 
are,  or  any  other  coin  that  is  used  in 
common  payments  is  money  or 
cash.'  If  such  were  their  legal 
character  in  England,  where  there 
was  but  one  bank,  how  emphatically 
must  it  be  so  here  w^here  they  have 
supplanted  coin  for  every  purpose 
but  that  of  small  change,  and  where 
they  have  excluded  it  from  circula- 
tion almost  entirely.  It  is  true,  as 
was  remarked  in  Young  v.  Adams, 
6  Mass.  183,  that  our  bank  notes  are 
private  contracts  without  a  public 
sanction,  like  that  which  gives  oper- 
ation to  the  lawful  money  of  the 
country;  but  it  is  also  true  that  they 
pass  for  cash,  both  here  and  in  Eng- 
land, not  by  force  of  any  such  sanc- 
tion, but  by  the  legislation  of  general 
consent,  induced  by  their  great  con- 
venience, if  not  the  absolute  neces- 
sities of  mankind.  Miller  v.  Race 
is  a  leading  case  which  has  never 
been  doubted  in  England,  or,  except 
in  a  case  presently  to  be  noticed,  in 
America;  and  it  goes  very  far  to  rule 
the  point  before  us;  for  if  the  wheel 
of  commerce  is  to  be  stopped  or 
turned  backwards  in  order  to  repair 
accidents  to  it  from  impurities  in 
the  medium  which  keeps  it  in  mo- 
tion, except  those  which,  few  and 
far  between,  are  occasioned  by  for- 
gerj^  bank  notes  must  cease  to  be  a 
part  of  the  currency,  or  the  business 


pay:mext. 


307 


"Where  recourse  is  allowed  to  the  party  who  paid  out  the  hills, 
it  does  not  depend  on  their  being  worthless.  Parker,  C.  J., 
said :  "  The  case  of  a  payment  in  bills  of  a  broken  bank  can- 
not be  distinguished  in  principle  from  a  payment  in  counterfeit 
money.  From  the  time  of  the  failure  of  the  bank  they  cease 
to  be  the  proper  representatives  of  money,  whether  they  are  at 


of  the  world  must  stand  still.  The 
weight  of  authority  bearing  dii-ectly 
on  the  point,  is  (1841)  decisively  in 
favor  of  the  position  that  bona  fide 
payment  in  the  notes  of  a  broken 
bank  discharges  the  debt.  .  .  . 
Camidge  v.  Allenby,  6  B.  &  C.  373; 
Scmggs  V.  Gass,  8  Yerg.  175;  Young 
V.  Adams,  6  Mass.  182;  against 
Lightbody  r.  Ontario  Bank,  11 
Wend.  1;  affirmed,  13  id.  101.    .    .    . 

"  To  assvime  that  the  solvency  of 
the  bank  at  the  time  of  the  transfer 
is  an  inherent  condition  of  it,  is  to 
assume  the  whole  ground  of  the  ar- 
gument. The  conclusion  concurred 
in  by  all,  however,  was  that  the  me- 
dium must  turn  out  to  have  been 
what  the  debtor  offered  it  for  at  the 
time  of  payment.  How  does  that 
consist  with  the  equitable  principle 
that  there  must  be,  in  eveiy  case,  a 
motive  for  the  interference  of  the 
law,  but  that  it  must  be  stronger 
than  any  to  be  found  on  the  other 
side;  else  the  equity  being  equal, 
and  the  balance  inclining  to  neither 
side,  things  must  be  left  to  stand  as 
they  are  (Fonb.  B.  1,  c.  V,  §  3;  id. 
ch.  IV,  §  25);  in  other  words,  that  the 
law  interferes  not  to  shift  a  loss  from 
one  innocent  man  to  another  equally 
innocent,  and  a  stranger  to  the  cause 
of  it. 

"  The  self-evident  justice  of  this 
would  be  proof,  were  it  necessary, 
that  it  is  a  j)rinciple  of  the  common 
law.  But  we  need  go  no  further  in 
search  of  authority  for  it  than  Jliller 
V.  Kace,  in  which  one  who  had  re- 


ceived a  stolen  bank  note  for  full 
consideration  in  the  course  of  his 
business  was  not  compelled  to  re- 
store it.  It  was  intimated  in  The 
Ontario  Bank  v,  Lightbody,  that 
there  was  a  preponderance  of  equity 
in  that  case,  not  on  the  side  of  him 
who  had  lost  the  note,  but  of  him 
who  had  last  given  value  for  it. 
"Why  last?  The  maxim,  jjvior  in 
tempore  portior  injure,  prevails  be- 
tween prior  and  subsequent  purchas- 
ers indifferently  of  a  legal  or  an 
equitable  title.  It  is  for  that  reason 
that  the  owner  of  a  stolen  horse  can 
reclaim  him  of  a  purchaser  from  the 
thief;  and  were  not  the  field  of  com- 
merce market  overt  for  eveiything 
which  performs  the  ofHce  of  money 
in  it,  the  owner  of  a  stolen  note 
might  foUow  it  into  the  hands  of  a 
bona  ^c?e  holder  of  it.  But  general 
convenience  requires  that  he  should 
not;  and  it  was  that  principle,  not 
any  consideration  of  the  equities  be- 
twixt the  parties,  which  i-uled  the 
case  of  Miller  v.  Race.  But  a  more 
forcible  illustration  of  the  principle, 
were  the  case  indisputably  law, 
might  be  had  in  Levy  v.  The  Bank 
of  the  U.  S.  4  Dall.  435;  S.  C.  1 
Binn.  27,  in  which  the  placing  even 
a  forged  check  to  the  credit  of  a  de- 
positor as  cash  —  a  transaction  really 
not  within  any  principle  of  conven- 
tional law — was  held  to  conclude 
the  baiik;  and  to  this  may  be  added 
the  entire  range  of  cases  in  which 
the  purchaser  of  an  article  from  a 
dealer,  has  been  bound  to  bear  a  loss 


368 


CONVENTIONAL    LIQUIDATIONS   AND    DISGHAKGE5. 


the  time  near  to  or  at  a  distance  from  the  bank.  They  may 
have  a  greater  vahie  than  counterfeit  bills,  but  in  neither  case 
has  the  party  received  what  in  the  contemplation  of  both  parties 
he  was  entitled  to  receive,  if  the  contract  was  to  pay  a  certain 
sum.  In  neither  case  has  he  received  the  money  or  its  repre- 
sentative.    The  sum  contracted  to  be  paid  in  money,  or  any- 


from  a  defect  in  the  quality  of  it. 
And  for  the  same  reason  that  the 
law  refuses  to  interfere  between  par- 
ties niutvially  innocent,  it  refuses  to 
interfere  between  those  who  are 
mutually  culpable;  as  in  the  case  of 
an  action  for  negligence.  What  is 
there,  then,  in  the  case  before  us  to 
take  it  out  of  this  great  principle  of 
the  common  law  ?  The  position 
taken  by  the  courts  of  New  York  is, 
that  every  one  who  jjarts  with  his 
proj)erty  is  entitled  to  expect  the 
value  of  it  in  coin.  Doubtless  he  is. 
He  may  exact  payment  in  precious 
stones,  if  such  is  the  bargain.  But 
where  he  has  accepted  without  re- 
serve what  the  conventional  laws  of 
the  country  declare  to  be  cash,  his 
claim  to  anything  else  is  at  an  end. 
Bills  of  exchange  and  promissory 
notes  enter  not  into  the  transactions 
of  commerce  as  money;  but  it  im- 
presses even  these  with  qualities 
which  do  not  belong  to  ordinary  se- 
curities. The  holder  of  one  of  them, 
who  has  taken  it  in  the  ordinary 
course,  can  recover  on  it,  whether 
there  was  a  consideration  between 
the  original  parties  or  not. 

' '  The  assertion  that  it  is  always  an 
original  and  subsisting  part  of  the 
agreement  that  a  bank  note  shall 
turn  out  to  have  been  good  when  it 
was  paid  away,  can  be  conceded  no 
farther  than  regards  its  genuineness. 
That  genuine  notes  are  supposed  to 
be  equal  to  coin  is  disproved  by  daily 
experience,  which  shows  that  they 
circulate  by  the  consent  of  whole 


communities  at  their  nominal  value 
when  notoriously  below  it.  But 
Avhy  hold  the  payer  responsible  for 
the  failure  of  the  bank  only  when  it 
has  been  ascertained  at  the  time  of 
the  payment,  and  not  for  insolvency 
ending  in  an  ascertained  failure 
afterwards  ?  As  the  bank  may  have 
been  actually  insolvent  before  it 
closed  to  let  the  world  know  it,  we 
must  carry  his  responsibility  back 
beyond  the  time  when  it  ceased  to 
redeem  its  notes,  if  we  carry  it  back 
at  all.  Were  it  not  for  the  conven- 
tional principle  that  the  purchaser 
of  a  chattel  takes  it  with  its  defects, 
the  purchaser  of  a  horse  with  the 
seeds  of  mortal  disease  in  Mm  might 
refuse  to  pay  for  him  though  his 
vigor  and  usefulness  were  yet  unim- 
paired; and  if  we  strip  a  payment 
in  bank  notes  of  the  analogous  cash 
principle,  why  not  treat  it  as  a  nul- 
lity, by  showing  that  the  bank  was 
actually,  though  not  ostensibly,  in- 
solvent at  the  time  of  the  transac- 
tion. It  is  no  answer  that  the  note 
of  an  unbroken  bank  may  be  in- 
stantly convei'ted  into  coin  by  pre- 
senting it  at  the  counter.  To  do 
that  may  require  a  journey  from 
Boston  to  New  Orleans,  or  between 
places  still  further  apart,  and  the 
bank  may  have  stopped  in  the  mean- 
time, or  it  may  stop  at  the  instant  of 
presentation  when  situated  where 
the  holder  resides.  And  it  may  do 
so  when  it  is  not  insolvent  at  all,  but 
perfectly  able  eventually  to  pay 
the   last  shilling.     This  distinction 


PAYMENT. 


3G9 


thing  "U'liich  by  usage  passes  as  money,  or  wliich  ^as  at  the 
time  entitled  to  represent  it ;  and  the  party  has  therefore  failed 
to  pay  what  he  contracted  to  pay.  Counterfeit  coin  may  con- 
tain a  portion  of  good  metal,  and  thus  have  some  value,  but 
this  would  not  make  it  a  good  medium  of  payment.     Entire 


between  previous  and  subsequent 
failure  evinced  by  stopping  before 
tlie  time  of  the  transaction  or  after 
it,  is  an  arbitrary  and  impracticable 
one.  To  such  a  payment  we  must 
apply  the  cash  principle  entire,  or 
we  must  treat  it  as  a  transfer  of  ne- 
gotiable paper,  imposing  on  the 
transferee  no  more  than  the  ordi- 
nary mercantile  responsibility  in  re- 
gard to  presentation  and  notice 
of  dishonor.  There  is  no  middle 
groimd.  ,  .  .  The  case  of  a 
counterfeit  bank  note  is  entirely  dif- 
ferent. The  laws  of  trade  extend  to 
it  only  to  prohibit  the  circulation  of 
it.  They  leave  it  in  all  beside  to 
what  is  the  rule  both  of  the  common 
and  the  civil  law,  which  requires  a 
thing  parted  with  for  a  price  to  have 
an  actual,  or  at  least  a  potential  ex- 
istence (2  Kent.  468),  and  a  forged 
note,  destitute  as  it  is  of  the  quality 
of  legitimate  being,  is  a  nonentity. 
It  is  no  more  a  bank  note  than  a 
dead  horse  is  a  living  one;  and  it 
is  an  elementary  j^rinciple,  that 
what  has  no  existence  cannot  be 
the  subject  of  a  contract.  But  it 
cannot  be  said  that  the  genuine 
note  of  an  insolvent  bank  has  not 
an  actual  and  a  legitimate  existence, 
though  it  be  little  worth;  or  that 
the  receiver  of  it  has  not  got  the 
thing  he  expected.  It  ceases  not  to 
be  genuine  by  the  bank's  insolvency; 
its  legal  obligation  as  a  contract  is 
undissolved;  and  it  remains  a  prom- 
ise to  pay,  though  the  pi-omisor's 
ability  to  perforin  it  be  impaired  or 
destroyed.  .  .  The  difference 
Vol.  1  —  24 


between  forgery  and  insolvency  in 
relation  to  a  bank  note,  is  as  dis- 
tinctly marked  as  the  difference 
between  title  and  quality  in  relation 
to  the  sale  of  a  chattel. 

"  What  then  becomes  of  the  boast- 
ed principle  that  a  man  shall  not 
have  parted  with  his  property  mitil 
he  shall  have  had  value,  or  rather 
what  he  expected  for  it  ?  Like  many 
others  of  the  same  school,  it  would 
be  too  refined  for  our  times,  even 
did  a  semblance  of  justice  lie  at  the 
root  of  it.  But  nothing  devised  by 
human  sagacity  can  do  equal  and 
exact  justice  in  the  apprehension  of 
all  men.  The  best  that  can  be  done, 
in  any  case,  is  no  more  than  an  ap- 
proximation to  it;  and  when  the  inci- 
dental risks  of  a  business  are  so 
disposed  of  as  to  consist  with  the 
general  convenience,  no  injustice 
will  in  the  end  be  done  to  those  by 
whom  they  are  borne.  Commerce 
is  a  system  of  dealing  in  which  risk, 
as  well  as  labor  and  capital,  is  to  be 
compensated.  But  nothing  can  be 
more  exactly  balanced  than  the 
equities  of  parties  to  a  payment  in 
regard  to  the  risk  of  the  medium 
when  its  worthlessness  was  unsus- 
pected by  either  of  them.  The  dif- 
ference between  them  is  not  the 
tithe  of  a  hair  or  any  other  infinites- 
imal quantity  that  can  be  imagined; 
and  in  such  a  case,  the  common  law 
allows  a  loss  from  mutual  mistake  to 
rest  Avhere  it  has  fallen,  rather  than 
to  remove  it  from  the  shoulders  of 
one  innocent  man  to  the  shoulders 
of  another  equally  so." 


3Y0 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


wortlilessness,  or  not,  is  not,  therefore,  tlie  criterion."^  A  return 
of  such  paper  by  the  receiver  is  required  as  a  condition  of  a 
right  to  recover  from  the  payer ;  and  the  necessity  of  returning 
it  arises  from  the  same  considerations  in  the  case  of  counterfeit 
money ;  to  enable  the  party  paying  to  secure  himself  with  prior 
parties.  But  whether  the  rule  requiring  return  within  a  rea- 
sonable time  is  confined  to  cases  in  which  the  payer  has 
recourse,  does  not  appear  to  be  decided.  If  the  failure  occurred 
while  he  was  the  owner  of  the  bills,  he  has  no  recourse ;  and  if 
they  are  not  retm^ned,  why  may  not  the  party  receiving  and 
retaining  them  be  charged  with  their  value,  and  the  recovery  be 
limited  to  the  dei)reciation  ?  ^ 


PAY]^IENT  BY  NOTE,  BILL  OR  CHECK. —  A  Creditor  may  receive 
anything  of  value  as  payment.*  A  debtor,  b}^  agreement  with 
his  creditor,  may  pay  his  contemporaneous  or  antecedent  debt  in 
a  note  or  bill  against  a  third  person ;  but  there  must  be  a 
mutual  agreement  of  the  parties  that  it  shall  be  transferred 
and  received  as  final  satisfaction,  without  recourse,  or  con- 
dition of  being  productive.''  Where  goods  are  sold  for  a 
particular  note,  it  is  an  exchange  or  barter,  and  the  note  has  the 


iFogg  V.  Sawyer,  9  N.  H.  365; 
Frontier  Bank  v.  Morse,  22  Me.  88; 
Magee  v.  Carmack,  13  111.  289. 

2  Townsend  v.  The  Bank  of  Racine, 
7  Wis.  185;  Ontario  Bank  v.  Light- 
body,  13  Wend.  104.  In  Magee  v. 
Carmack,  13  111.  289,  the  court  re- 
mark as  to  the  decision  of  what  is  a 
reasonable  time,  that:  "When  from 
the  nature  of  the  subject,  a  general 
rule  can  be  applied  to  all  cases,  then 
what  constitutes  reasonable  notice 
may  be  a  question  of  law  for  the 
court,  as  notice  to  the  indorser  of  a 
bill  or  note.  But  when,  as  in  this 
case,  the  question  of  what  would 
constitute  a  reasonable  time  must 
depend  upon  the  peculiar  circum- 
stances of  each  case,  and  cannot 
reasonably  be  subjected  to  any  gen- 
eral rule,  then  it  is  a  question  of  fact 


for  the  jury,  to  be  determined  from 
all  the  circumstances." 

3  Louden  v.  Burt,  4  lud.  566;  Reed 
V.  Bartlett,  19  Pick.  273;  Tilford  v. 
Roberts,  8  Ind.  254. 

4  St.  John  V.  Purdy,  1  Sandford,  9; 
New  York  State  Bank  v.  Fletcher,  9 
Wend.  85:  Conkling  v.  King,  10  N. 
Y.  440,  affirming  10  Barb.  872; 
Roberts  v.  Fisher,  53  Barb.  69; 
Wright  V.  Crockery  Ware  Co.  1  N. 
H.  281;  Jaffrey  V.  Cornish,  10  id.  505; 
EUiott  V.  Sleeper,  2  id.  527;  RundeU 
V.  Herren,  20  id.  102;  Brewer  v. 
Branch  Bank,  24  Ala.  440;  Hutchins 
V.  Olcutt,  4  Vt.  549;  Hart  t.  Boiler, 
15  S.  &  R.  162;  Citizens'  Bank  v. 
Carson,  32  Mo.  191;  Smith  v.  Ovrens, 
21  Cal.  11;  Graves  v.  Friend,  5  Sandf. 
568. 


PAYMEXT. 


effect  of  payment.^  And  it  lias  been  held  that  when  the  note 
of  a  third  person  is  taken  without  recourse,  by  indorsement  or 
otherwise,  for  goods  sold  at  the  time,  the  presumption  is  it  is 
taken  in  payment.^ 

"Whether  the  receipt  by  the  creditor  of  the  debtor's  note,  or 
the  note  of  one  of  several  debtors,  with  the  agreement  that  it  is 
received  at  the  risk  of  the  creditor,  and  as  full  satisfaction,  will 
havg  the  effect  to  extinguish  the  debt,  is  not  universally  agreed. 

In  jS'ew  York  it  has  been  several  times  held,  and  perhaps  the 
doctrine  there  may  be  deemed  settled,  that  a  debtor's  note,  al- 
though expressly  received  as  satisfaction,  cannot  extinguish  his 
precedent  debt.' 


iFerden  v.  Jones,  2  E.  D.  Smith, 
106;  Whitbeck  v.  Van  Ness,  11  John. 
409;  Breed  v.  Cook,  15  John.  241; 
Rew  V.  Barber,  3  Cow.  272 

2Torey  v.  Hadley,  27  Barb.  192; 
Wlaitbeck  v.  Van  Ness,  11  John.  409; 
Noel  V.  Murray,  13  N.  Y.  167;  Rew 
V.  Barber,  3  Cow.  272;  Breed  v. 
Cook,  15  John.  241;  Bank  of  Eng- 
land V.  Newman,  1  Ld.  Raym.  442; 
Bayard  v.  Shunk,  1  Watts  &  S.  92; 
Fydele  v.  Clark,  1  Esp.  447;  Clark  v. 
MundaU,  1  Salk.  124.  But  see  Dar- 
nall  V.  Morehouse,  36  How,  Pr.  511; 
Turner  v.  The  Bank  of  Fox  Lake,  42 
N.  Y.  425;  Youngs  v.  Stahelin,  34 
N.  Y.  258  (Kej-es);  Owenson  v.  Morse, 
7  T.  R.  64;  Burrows  v.  Bangs,  34 
Mich.  304;  Gardner  v.  Gorham,  1 
Douglass  (Mich.),  507;  Van  Gleef  v. 
Therasson,  8  Pick.  12. 

3  Cole  V.  Sackett,  1  HiU,  516.  In 
this  case,  Co  wen,  J.,  said;  "It  may 
be  considered  at  present  as  entirely 
settled,  that  to  operate  as  a  satisfac- 
tion, the  promise  must  be  of  some 
third  person;  in  other  words,  some- 
thing over  and  above  the  original 
debt.  A  promise  by  note  is  a  secu- 
rity of  no  higher  degree  than  an  im- 
plied promise;  and  the  logic  of  these 
pleas  is  no  more  than  saying:  'Your 
precedent    debt    is    discharged    be- 


cause I  promised  to  pay  it  in  another 
form,  and  you  accepted  the  latter 
promise  as  a  satisfaction.'  What 
consideration  is  there  for  such  an  ac- 
ceptance? The  new  promise  to  do 
a  thing  which  the  debtor  was  bound 
to  do  bef oi'e  —  a  thing  which  he  now 
refuses  to  do,  because  he  had  prom- 
ised again  and  again  to  do  it  !  In 
these  promising  times,  there  are,  I 
apprehend,  few  debts  w^hich  on  such 
a  theory  are  not  in  danger  of  being 
barred,  much  short  of  the  statutes  of 
limitations;  for  creditors,  however 
unwilling,  are  many  times  obliged 
to  accept  promises  as  the  only  satis- 
faction they  can  obtain  for  the  pres- 
ent. It  is  entirely  settled  that  a 
promissory  note  in  no  way  affects  or 
impairs  the  original  debt,  unless  it 
be  paid.''  See  Rodes  v.  Barnes,  1 
Burr.  9.  Notwithstanding  the  argu- 
ment, from  want  of  consideration,  in 
the  foregoing  opinion,  Judge  Cowen 
conceded  to  negotiable  notes  taken 
for  an  account,  some  additional 
value  to  the  creditor,  in  Mj'ers  v. 
Wells,  5  HUl,  463:  "Being  negotia- 
ble, they  might  be  used  more  bene- 
ficially than  the  account.  Besides, 
the}'  operate  to  Liquidate  the  plaint- 
iff's claim.  These  advantages  con- 
stituted sufficient  consideration  for 


o'~o 


CONVENTIONAL    LIQUIDATIONS    AND    DISCUAEGES. 


In  England,  and  generally  in  tliis  coimtiy,  it  is  believed  that 
the  debtor's  note,  when  received  by  mutual  agreement  of  the 
parties  as  satisfaction,  is  held  to  have  that  effect;  and  the 
rule  apphes  equally  whether  the  debt  be  antecedent  or  con- 
temporaneous.^ 

Where  any  person  is  obligated  to  pay  money,  a  payment 
made  in  any  mode,  either  property,  or  his  negotiable  paper,  or 
other  securities,  if  such  payment  is  received  as  a  full  satisfac- 
tion of  the  demand,  it  is  equivalent  for  the  purpose  of  pay- 
ment to  cash.2  jj^  Massachusetts,  Maine,  Indiana,  and  Ver- 
mont, when  a  creditor  receives  the  negotiable  note  of  the 
debtor  either  for  an  antecedent  or  contemporaneous  simple  con- 
tract debt,  it  is  presumed  to  be  received  as  absolute  and  not 


tlie  suspension.''''  See  Frisbee  v. 
Larned,  21  Wend,  450;  Putnam  v. 
Lewis,  8  John.  389;  Hawley  v.  Foote, 
19  Vv'^end.  516. 

On  principle,  it  might  well  be 
claimed  that  where  the  new  note  is 
supported  by  sufficient  considera- 
tion for  forbearance,  that  consider- 
ation is  sufficient  for  a  discharge  of 
the  original  debt. 

1  Sard  V.  Rhodes,  1  M.  &  W.  153; 
Sibree  v.  Tripp,  15  id.  23;  2  Am. 
Lead.  Ca.  5  id.  273;  1  Smith  Lead.  Ca. 
pt.  1,  7  Am.  ed.  *456;  Yates  v.  Val- 
entine, 71  111.  643;  Chitty  on  BiEs, 
289  et  seq.  and  p.  119;  Story  on  Prom. 
Notes,  §  389,  note  3,  §  405;  Seltzer  v. 
Coleman,  32  Pa.  St.  493;  Smith's 
Mer.  L.  542;  Cornwell  v.  Gould,  4 
Pick.  444;  Hare  v.  Alexander,  2  Met. 
157;  Sheeby  v.  Mandevill,  6  Cranch, 
253;  Maillard  v.  Duke  of  Argyle,  6 
M.  &  G.  40;  Hart  v.  Boiler,  15  S.  &  R. 
162;  Jones  v.  Shawan,  4  W.  &  S.  257; 
Sutton  V.  The  Albatross,  2  Wall. 
p.  327;  Keough  v.  McNitt,  6  Minn. 
513.  See  18  id.  66;  Bank  v.  Bobo,  11 
Rich.  L.  597;  Haven  v.  Foley,  19  Mo. 
C3G;  Dougall  v.  Smith,  5  Day,  511; 
Bonnell  v.  Chamberlin,  26  Conn. 
487;  McMurray  v.  Taylor,  36  Mo. 
263;  Foster  v.   Hill,  36  N.   H.   526; 


Moody  V.  Leavitt,  2  N.  H.  171;  Cas- 
telo,  Adra'r,  v.  Cove,  2  Hill  (S.  C), 
207;  Drake  v.  Mitchell,  3  East,  251 
Foster  v.  Alamon,  2D.    &  E.  479 
Moravin  v.  Le\'y,   2  D.   &  E.  483 
Watson  V.  Owens,  1  Rich.  Ill;  The 
Kimball,  3  WaU.  37;  Brown  v.  Ohn- 
sted,  50  Cal.  162;  AUy  v.  Rogers,  19 
Graft.  366;   Burrows   v.    Bangs,    34 
Mich.  304. 

2 Ralston  v.  W^ood,  15  111.  159;  Gil- 
lilan  V.  Nixon,  26  id.  52;  Cox  v. 
Reed,  27  id.  434;  Wilkinson  v. 
Stewart,  30  id.  58;  Leake  v.  Brown, 
43  id.  376;  Tinsley  v.  Ryan,  9  Tex. 
405;  Robson  v.  Watts,  11  Tex.  764; 
Van  Middlesworth  v.  Van  Middles- 
worth,  32  Mich.  183;  Wright  v.  Law- 
ton,  37  Conn.  167;  Gage  v.  Lewis,  68 
111.  606;  DooUttle  v.  D wight,  2  Met, 
561;  Wetherby  v,  Mann,  11  John. 
518;  McGellan  v,  Craftom,  6  Greenlf. 
304;  Randall  v.  Rich,  11  Mass.  494; 
Pearson  v.  Parker,  3  N.  H.  366;  At- 
kinson V.  Stewart,  2  B.  Mon.  343; 
Howe  V.  Buffalo,  etc.  R.  R.  Co.  37 
N.  y.  297;  Keeler  v.  Boalmen,  49 
Ind.  104.  In  Pitzer  v.  Harmon,  8 
Blackf.  112,  a  note  negotiable  was 
given  by  the  surety  and  was  taken  in 
discharge  and  satisfaction;  held  not 
such  a  payment  as  would  warrant  a 


PAYMENT. 


873 


conditional  payment.^  This  is  a  presumption  of  fact  only, 
liable  to  be  controlled  by  evidence  that  such  was  not  the  inten- 
tion of  the  parties.^ 

It  is  founded  upon  the  consideration  that  when  a  note  is 
given  for  goods,  even  if  it  is  not  negotiable,  it  is  equally  con- 
venient to  the  creditor,  and  generally  more  so,  to  sue  on  the 
note,  than  on  the  original  consideration;  and  so  there  is  no 
reason  for  considering  the  original  simple  contract  as  still  subsist- 
ing and  in  force;  therefore,  a  presumption  arises  that  it  was 
intended  by  the  parties  that  the  note  should  be  deemed  a  satisfac- 
tion.^ The  presumption,  however,  is  founded  on  the  negotiable 
character  of  the  note,  and  does  not  apply  to  other  instruments.* 
The  same  presumption  arises  when  payment  is  made  by  the 
note  of  a  third  person,  unless  there  is  an  a2:reemeiit  to  the  con- 
trary,  or  equivalent  circumstances.^  The  presumption  that  a 
note  is  taken  as  satisfaction  is  affected  by  circumstances.  Thus, 
where  the  note  given  is  not  the  obligation  of  all  the  parties  who 


recovery  against  the  principal  for 
money  paid.  See  Bennett  v.  Bu- 
chanan, 3  Ind.  47. 

iDale  V.  Hayclen,  1  Greenlf.  152; 
M  'Hedge  v.  The  Boston  Iron  Co.  5 
Cash.  158;  Thatcher  v.  Dinsmore,  5 
Mass.  299;  Whitcomb  v.  Williams,  4 
Pick.  288;  Goodenow  v.  Tyler,  7 
Mass.  36;  Maneeley  v.  McGee,  6 
Mass.  143;  Fowler  v.  Bush,  21  Pick. 
230;  Chapman  v.  Durant,  10  Mass. 
47;  Wood  v.  BodweU,  13  Pick.  268; 
Scott  v.  Ray.  18  Pick.  268;  Jolmson 
T.  Johnson,  11  Mass.  361;  French  v. 
Price,  24  Pick.  13;  Wise  v.  Hilton,  4 
Greenlf.  435;  Holmes  v.  Smith,  16 
Me.  181;  Gilmore  v,  Bussey,  12  Me. 
418;  Tnistees,  etc.  v.  Kendrick,  12 
Me.  381;  Comstock  v.  Smith,  23  Me. 
202;  Butts  v.  Dean,  2  Met.  76; 
Hodges  V.  Fox,  36  Vt.  74;  Burdett  v. 
Hull,  29  Vt.  165;  Alfred  v.  Baker,  53 
Ind.  280;  Tyner  v.  Stoops,  11  Ind. 
22;  Huff  V.  Cole,  45  Ind.  300;  Max- 
well V.  Day,  45  Ind.  509.  See  Con- 
necticut Trust  Co.  V.  Melendy,  119 
Mass.  449;  Ward  v.  Howe,  38  N.  H. 


35.  In  Dole  v.  Hayden,  1  Greenlf. 
152,  where,  upon  a  settlement  of 
mutual  accounts,  a  promissoiy  note 
was  given  for  the  balance  supposed 
to  be  due,  but  by  a  mistake  in  th© 
compvitation  of  the  accounts  the 
note  was  made  for  $20  more  than  in 
truth  was  due,  it  was  held  that  the 
debtor  might  recover  this  sum  from 
the  creditor,  although  the  note  still 
remained  unpaid. 

The  court  treated  the  mistake  as 
substantially  an  omission  to  allow 
|20  of  the  plaintiff's  account,  and 
this  action  as  brought  for  it. 

2Melledge  v.  Boston  Iron  Co.  5 
Cush.  158;  Maneeley  v.  McGee,  6 
Mass.  143;  Watkins  v.  Hill,  8  Pick. 
522;  Howland  v.  CofRn,  9  Pick.  54; 
Reed  v.  Upton,  10  Pick.  525;  Butts 
V.  Dean,  2  Met.  76. 

» Curtis  V.  Hubbard,  9  Met.  328. 

4  Trustees,  etc.  v.  Kendrick,  12  Me, 
381;  Chapman  v.  Coffin,  14  Gray, 
454;  Greenwood  v.  Curtis,  6  Mass. 
358. 

5  Wiseman  v.  Lyman,  7  Mass.  286. 


3Y4:, 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHAKGES. 


are  liable  for  the  simple  contract  debt,  and  a  fortiori  when  the 
note  given  is  that  of  a  third  person,  and  if  held  to  be  in  satis- 
faction, TFonld  wholly  discharge  the  liability  of  other  parties 
previously  liable,  the  presumption,  if  it  exists  at  all,  is  held  of 
much  less  weight.^  The  fact  that  such  presumption  would  de- 
prive the  party  who  takes  the  note  of  a  substantial  benefit  has 
a  strong  tendency  to  show  that  it  was  not  so  intended ;  as  where 
it  would  impl}^  the  discharge  of  a  mortgage.^ 

The  rule  in  the  states  above  nametl  is  exceptional.  The  rule 
held  generally  in  this  country,  as  well  as  in  England,  is  that  a 
note,  bill  or  check  of  the  debtor  or  of  a  third  person  given  and 
received  on  account  of  a  previous  debt,  or  one  contemporane- 
ously contracted,  is  not  absolute  but  conditional  payment, 
unless  it  is  accepted  as  such,  or  unless  it  produces  payment.* 


'  Mellcdge  v.  Boston  Iron  Co.  5 
Cush.  158;  Maneeley  v.  McGee,  6 
Mass.  143;  Emerson  v.  Providence 
Hat  M.  Co.  12  Mass.  237;  French  v. 
Price,  24  Pick.  13;  Barnard  v. 
Graves,  16  Pick.  41;  Curtis  v.  Hub- 
bard, 9  Met.  328. 

2Watkins  v.  Hill,  8  Pick.  522; 
Pomeroy  v.  Rice,  16  Pick.  22;  Lorane 
V.  Wilson,  8  Cush.  424.  See  Fowler 
V.  Bush,  21  Pick.  230.  In  Weddin- 
gen  v.  Boston  Elastic  Fabric  Co. 
100  Mass.  422,  a  buyer  sent  the  seller 
a  third  person's  check  to  pay  for  a 
biU  of  goods;  the  seller  sent  a  receipt 
for  the  amount  as  received  in  settle- 
ment of  the  biU.  At  the  time  of 
sending  the  check  the  buyer  sup- 
posed it  to  be  good,  but  it  was  sea- 
sonably presented,  and  dishonored; 
held  not  a  payment  or  accord  and 
satisfaction. 

Where  a  debtor  gave  his  negoti- 
able note  for  the  amount  of  his  debt, 
and  included  more  than  lawful  in- 
terest in  consideration  of  furtlier  de- 
lay of  payment,  the  note  being  void 
for  usury,  held  the  original  debt  was 
not  discharged,  and  might  still  be 
recovered,  though  a  receipt  was 
given   at    the    time   the    note  was 


taken.  Johnson  v.  Jolinson,  11 
Mass.  359;  Stebbins  v.  Smith,  4  Pick, 
97;  Ramsdell  v.  Soule,  12  Pick.  126; 
Meschke  v.  Van  Doren,  16  Wis.  319; 
Lee  V.  Peckham.  17  Wis.  383.  See 
Webster  v.  Stadden,  14  id.  277.  A 
negotiable  note  given  in  New  Yoi'k 
for  goods  sold  there  by  a  citizen  of 
that  state  is  no  satisfaction  of  the 
original  debt,  so  as  to  bar  an  action 
in  Massachusetts  for  the  same,  al- 
tliough  the  note  was  lost,  and  the 
vendor  had  given  the  vendee  a  re- 
ceipt stating  that  the  note  was  re- 
ceived in  full  for  the  goods.  Van 
Cleef  v.  Therasson,  3  Pick.  12. 

sCostelo  V.  Cave,  3  HiU  (S.  C); 
207;  Slocomb  v.  Larty,  Hemp.  C.  C 
431;  Heartt  v.  Rhodes,  66  lU.  851 
Smith  V.  Applegate,  1  Daly,  91 
Crane  v.  McDonald,  45  Barb.  354 
Kelty  V.  2d  National  Bank,  52  Barb. 
328;  Johnson  v.  Bank  of  N.  Amer- 
ica, 5  Robt.  554;  Smith  v.  Miller,  6 
Abb.  N.  S.  234;  Wehrlin  v.  Schmutz, 
1  City  Ct.  R.  (N.  Y.)  101;  Turner  v. 
Bank  of  Fox  Lake,  3  Keyes,  425;  S. 
C.  23  How.  Pr.  3S9;  Strong  v.  King, 
35  lU.  9;  Hodges  v.  Latham,  33  lU. 
344;  People  v.  Howell,  4  John.  296; 
Strong   V.    Stevens,    4  Duer,    668; 


PAYMENT. 


6^o 


Houston  V.  Shindler,  11  Barb.  36; 
Lovett  V.  Com  well,  5  Wend.  369; 
Pratt  V,  Foote,  9  N.  Y.  463;  Demp- 
ster V.  West,  69  lU.  613;  Genter  v. 
Tompkins,  12  Barb.  255;  Olcott  v. 
Rathbone,  5  Wend.  490;  Kobbi  v. 
Underbill,  3  Sandf.  Cb.  277;  Tbonip- 
6on  V  Briggs,  28  N.  H.  40;  Barnett 
V.  Smitb,  30  N.  H.  256;  Hill  v. 
Marcy,  49  N.  H.  265;  Jobnson  v. 
Cleves,  15  N.  H.  332;  Wrigbt  v.  The 
Fii-st  Crockeiy  Ware  Co.  1  N.  H. 
280;  Taffrey  v.  Cornish,  10  N.  H. 
505;  Commercial  Bank  of  Pa.  v. 
Union  Bk.  11  N.  Y.  203;  Murray  v. 
Gouveneur,  2  John.  Ca.  438;  Tobey 
T.  Barber,  5  John.  68;  Schemerhorn 
V.  Loines,  7  John.  311;  Porter  v.  Tal- 
cott,  1  Covr.  359;  Herring  v.  Sanger, 
3  John.  Ca.  71;  Cole  v.  Sackett,  1 
Hill,  516;  Yail  v.  Foster,  4  N.  Y. 
312;  Van  Epps  v.  Dellaye,  6  Barb. 
244;  Monroe  v.  Hoff,  5  Denio,  360; 
Darnell  v.  Morehouse,  35  How.  Pr. 
511;  Youngs  v.  Stahehn,  34  N.  Y. 
258;  Trustees  v.  Kendrick,  12  Me. 
381;  Gilmore  v.  Bussey,  12  Me.  418; 
Yan  Steinburgh  v.  Hoffman,  15 
Barb.  28;  Tucker  v.  CornweU,  67  111. 
552;  Hoar  v.  Qute,  15  John.  224; 
Conley  v.  Conley,  Hill  &  D.  Supp. 
312;  Bates  v,  Eosecrans,  37  N.  Y. 
409;  Tyner  v.  Stoops,  11  Ind.  22; 
Mclntyre  v.  Kennedy,  29  Pa.  St. 
448;  BusweU  v.  Pioneer,  37  N.  Y. 
312;  S.  C.  4  Abb.  Pr.  N.  S.  244;  35 
How.  447;  Mischke  v.  Van  Doren, 
16  Wis.  319;.  Lee  r.  Peckham,  17 
Wis.  383;  Webster  v.  Stadden,  24 
Wis.  277;  Bolles  v.  Cliancey,  8  Conn. 
389;  Davidson  v.  Borough  of  Bridge- 
port, 8  Conn.  472;  Gardner  v.  Gor- 
ham,  1  Doug.  (Mich.)  507;  Griffith 
V.  Crogan,  23  Cal.  317;  Burrows  v. 
Bangs,  34  ]Mich.  304;  Combs  v.  Bate- 
man.  10  Barb.  573;  Foster  v.  Hill, 
36  N.  H.  526;  Rouudlett  v.  Herron, 
20  N.  H.  102;  Yates  v.  Valentine,  71 
111.   643:  Peter  v.  Beverly,    10  Pet. 


532;  McMurray  v.  Taylor,  30  Mo. 
263;  Citizens'  Bank  v.  Carson,  33 
Mo.  191;  Brewster  v,  Bonn,  8  Cal. 
501;  Higgins  v.  Wartell,  18  Cal.  330; 
Freeman  v.  Benedict,  37  Conn.  559; 
Owenson  v.  Morse,  7  T.  R.  64; 
Holmes  v.  De  Camp,  1  John.  34; 
Angel  v,  Felton,  8  John.  149;  Pm- 
tard  V.  Tuckington,  10  John.  104; 
Smith  v.  Lockwood,  10  John.  375; 
Burdick  v.  Green,  15  John.  247; 
Hughes  V.  Wheeler,  8  Cow.  77; 
Lewis  v.  Lozer,  3  Wend.  79;  Higby 
V.  N.  Y.  &  Harl.  R.  R.  Co.  3  Bosw. 
497;  Purchase  v.  Matteson,  3  Bosw. 
118;  Putnam  v.  Lewis,  8  Jolin.  389; 
Christian  v.  John,  2  Bailey,  574; 
Wright  V.  StoiTs,  32  N.  Y.  691; 
Bank  V.  Webb,  39  N.  Y.  325;  Smith 
V.  Miller,  43  N.  Y.  171:  S.  C.  6  Robt. 
413;  6  Abb.  N.  S.  234;  AUy  v. 
Rogers,  19  Gratt.  367;  Brown  v. 
Olmstead,  50  Cal.  162;  The  Kimball, 
3  Vv^all.  37;  NeweU  v.  Nixon,  4  WaU. 
572;  Lee  v.  Tinges,  7  Md.  215;  Cor- 
nell V.  Lamb,  20  John.  407;  Roget 
v.  Clapp,  2  Caines,  171;  Waldron  v. 
"V^Tiitlock,  1  Cow.  290;  Smith  v. 
Owens,  21  Cal.  11;  Watson  v. 
Owens,  1  Rich.  Ill;  McNaughton 
V.  Partridge,  11  Ohio,  223;  Inibush 
Mech.  &  F.  Bank,  1  West.  L.  J.  49; 
Sutliff  V.  Atwood,  15  Oliio  St.  186; 
John  V.  John,  Wright,  584;  Dow- 
ney V.  Hicks,  14  How.  240;  McGinn 
V.  Holmes,  2  Watts,  121;  Lear  v. 
James,  10  S.  &  R.  307;  McClaery  v. 
Jackson,  6  Gratt.  96;  Harris  v, 
Johnston,  3  Cranch,  311;  Goodrich 
V.  Stanley,  24  Conn.  613;  Good  v, 
Cheesman,  2  B.  &  Ad.  32S;  Abrams 
v.  Musgrave,  13  Pa.  St.  292;  Gower 
V.  Hallo  way,  13  Iowa,  154;  Kep- 
hart  V.  Butcher,  17  Iowa,  240;  Far- 
well  v.  Salpaugh,  33  Iowa,  583; 
Huse  V.  McDaniel,  33  Iowa,  406; 
McLaren  v.  Hall,  26  Iowa,  297;  Far- 
well  V.  Grier.  38  Iowa,  83;  Smith  v. 
Jones,    20    Wend.    192;    Murray  v. 


376 


CONVElNlTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


Kenewal  of  a  note  is  not  a  payment ;  ^  and  will  not  discharge  a 
morto-ao-e  security.^  But  it  seems  where  renewal  is  a  discount 
of  the  new  note,  and  there  is  a  payment  of  the  old  note  out  of 
the  avails,  it  is  a  discharge  of  the  old  debt.^  Courts  are  in  the 
habit  of  saying  that  when  such  paper  is  given  for  a  debt,  it  is 
not  to  be  deemed  a  satisfaction,  unless  there  is  an  express  agree- 
ment to  that  effect.  It  is  probably  not  necessary  that  the  proof 
should  be  just  in  that  form ;  but  it  is  doubtless  essential  that 
there  be  an  express  agreement  or  circumstances  of  equal  force  to 


Judah,  6  Cow.  484;  Glenn  v.  Noble, 
1  Blackf.  104;  Wood  v,  Schroeder,  4 
Harr.  &  John.  276;  People  v.  How- 
ell, 4  Jolm.  296;  People  v.  Baker,  20 
Wend.  602;  Ward  v.  How,  38  N.  H. 
35;  Dedman  v.  Williams,  1  Scam. 
154;  Winslow  v.  Hardin's  Ex'r,  3 
Dana,  543;  Whittington  v.  Roberts, 
4  T.  B.  Mon.  173;  Archibald  v.  Ar- 
gaU,  53  111.  307;  Simons  v.  Clark,  56 
111.  96;  Rayburn  v.  Day,  27  111.  46; 
White  V.  Jones,  38  lU.  159;  Ed- 
wards V.  Truelock,  37  Iowa,  244; 
Lyman  v.  Bank  of  U.  S.  12  How. 
225;  In  re  Ouemitte,  1  Sawyer,  47; 
Bradford  v.  Fox,  16  Abb.  51;  S.  C.  38 
N.  Y.  289;  Taylor  v.  Oder,  36  Barb. 
214;  Davidson  v.  City  Bank,  57  N. 
y.  81;  Matteson  v.  Ellsworth,  33 
Wis.  488;  Paine  v.  Voorhees,  26 
Wis.  522;  Blunt  v.  Walker,  11  Wis. 
334;  Hart  v.  Boiler,  15  S.  &  R.  162; 
Maier  v,  CanaA^an,  8  Daly,  272; 
Huntington  v.  Coleman,  1  Blackf. 
348;  Kiser  v.  Ruddick,  8  Blackf. 
382;  Frisbee  v.  Lindley,  23  Ind.  511; 
Sweimgen  v.  Willing,  6  Mo.  174; 
Steamboat  Charlotte  v.  Hammond, 
9  Mo.  59;  Ford  v.  Mitchell,  15  Wis. 
304;  Lindsey  v.  McClelland,  18  Wis. 
481;  Eastman  v.  Porter,  14  Wis.  39; 
Maillard  v.  Duke  of  Argyle,  6  M.  & 
G.  40;  Plant's  Manuf.  Co.  v.  Fulvey, 
20  Wis.  200;  Cox  v.  Reed,  27  111.  433; 
Ealsten  v.  Wood,  15  111.  159;  Ker. 
meyer    v.    Ncwby,    14    Kan.    164; 


Bank  v.  Bobo,  11  Rich.  597;  Story 
on  Prom.  Notes,  §  107. 

iLowry  v.  Fisher,  2  Barb.  70; 
Kibby  v.  Jones,  7  Bush,  243;  Jag- 
gers  Iron  Co.  v.  Walker,  76  N.  Y. 
521. 

2  Williams  v.  Starr,  5  Wis.  534; 
Eastman  v.  Porter,  14  Wis.  39; 
Flower  v.  El  wood,  66  111.  437;  Coles 
V.  Withers,  33  Graft.  186;  Fowler  v. 
Bush,  21  Pick,  230.  In  this  case  a 
mortgage  was  given  as  security  for 
a  debt,- payable  in  instalments;  and 
after  the  first  instalment  became 
due,  the  mortgagee  called  on  the 
mortgagor  for  payment,  saying  he 
could  sell  the  note  and  mortgage,  if 
such  instalment  Avere  paid.  The 
mortgagor  thereupon  gave  a  nego- 
tiable note  for  such  instalment,  pay- 
able in  four  months,  upon  which  the 
mortgagee  proposed  to  raise  the 
money  at  a  bank;  and  the  following 
indorsement  was  made  on  the  orig- 
inal note:  "  Received  the  first  instal- 
ment on  the  within,  $402.78."  The 
mortgagee,  subsequently,  sold  the 
note  and  mortgage.  It  was  held 
that  this  was  a  payment  of  such  in- 
stalment and  not  a  mere  change  of 
security  for  the  same  debt;  that  the 
mortgage  was  discharged  pro  tanto. 

=*  Fisher  v.  Marvin,  47  Barb.  159; 
Castleman  v.  Holmes,  4  J.  J.  Marsh. 
3.  Contra,  Jaggers  Iron  Co.  v. 
Walker,  supra. 


PAYMENT. 


77 


show  tliat  intention.^  In  the  absence  of  such  an  agreement,  a 
negotiable  note  or  bill  of  exchange,  taken  as  conditional  payment, 
will  have  the  effect  to  suspend  the  right  of  action  until  it  ma- 
tures.2    And  then  it  will  not  be  presumed  in  favor  of  the  cred- 


iRandlet  v.  Herron,  20  N.  H.  102; 
Johnson  v.  Cleves,  15  id.  332;  Slo- 
comb  V.  Larty,  Hemp.  C.  C.  258; 
Youngs  V.  Stahelein,  34  N.  Y.  258; 
Yates  V.  Valentine,  71  111.  643,  In 
Eastman  v.  Porter,  14  Wis.  39,  it  is 
said  that  where,  in  connection  with 
the  fact  that  negotiable  paper  is 
taken  on  account  of  a  debt,  it  is  al- 
leged or  acknowledged  to  have  been 
received  "  as  payment,"  or  "  in  full," 
or  "in  full  of  all  demands,"  these 
expressions  must  be  considered  with 
that  fact,  and  interpreted  as  mean- 
ing conditional  payment.  Glenn  v. 
Smith,  2  Gill  &  John.  493;  Johnson 
V.  Weed,  9  John.  310;  Tobey  v.  Bar- 
ber, 5  John.  68;  Putnam  v.  Lewis,  8 
John.  389;  5  T.  R.  513;  6  id.  52;  Brad- 
ford V,  Fox,  38  N.  Y.  289.  But  in 
Connecticut,  as  evidence  that  a  new 
note  is  received  in  payment  of  an 
account,  peculiar  importance  is  at- 
tached to  a  receipt,  "w^hich  expresses 
that  the  note  is  given  in  full  pay- 
ment. It  is  there  held  that  such  a 
receipt  is  a  discharge,  unless  it  is  ex- 
ecuted under  circumstances  of  mis- 
take, accident  or  surprise,  or  is 
founded  in  fraud.  Bonnell  v.  Cham- 
berlin,  2G  Conn.  487;  Fuller  v.  Crit- 
tenden, 9  Conn.  401;  Tucker  v. 
Baldwin,  13  id.  136;  Hurd  v.  Black- 
man,  19  id.  177.  See  Bishop  v.  Per- 
kins, 19  id.  300;  Beam  v.  Barnum, 
21  Conn.  202.  Where  a  check  or  a 
new  note  or  bill  of  exchange  is  made, 
and  the  original  evidence  of  debt  in 
the  form  of  like  paper  is  thereupon 
suri-endered,  such  surrender  has 
been  the  subject  of  judicial  remark 
in  respect  to  its  force,  as  indicating 
an  intention  to  accept  as  satisfaction 
what    is    delivered   in   lieu    of    it. 


Walker,  C.  J.,  in  Strong  v.  King,  35 
lU.  9,  19,  said:  "The  bare  reception 
of  a  check  from  the  drawer,  for  the 
amount  of  the  bill,  will  not,  ordina- 
rily, be  considered  as  payment;  but 
only  as  a  means  of  payment,  and 
this  is  the  rule,  whether  the  bUl  is 
surrendered  to  the  drawer  at  the 
time  of  receiving  the  check,  or  is  re- 
tained by  the  holder  until  the  pay- 
ment is  consummated.  It  may  be  im- 
prudent to  surrender  the  bill  before 
actual  payment  is  made,  but  such 
improvidence  does  not  change  the 
rule."  In  Flower  v.  Elwood,  66  111. 
438,  444,  the  same  judge  said:  "  And 
although  the  surrender  of  the  notes 
by  the  mortgagee,  to  the  maker,  is 
prima  facie  evidence  of  their  pay- 
ment, still  such  presumption  may  be 
rebutted."  In  Yates  v.  Valentine,  71 
111.  643,  his  associate  delivering  ap- 
parently the  unanimous  ophiion  of 
the  court,  said:  "We  can  conceive 
of  no  act  showing  more  decisively 
that  it  was  intended  by  the  parties 
that  the  note  was  satisfied,  and 
should  be  canceled.  It  was  intended 
that  the  defendant  should  thereafter 
be  bound  by  the  terms  of  the  notes 
then  given,  and  the  old  note  was 
given  him  that  it  might  cease  to  ex- 
ist as  an  evidence  of  indebtedness 
against  him."  Christian  v.  Johnson, 
2  Bailey,  574;  Eastman  v.  Porter,  14 
Wis.  39;  Smith  v.  MiUer,  43  N.  Y. 
171. 

2  The  Kimball,  3AYall.  37;  Phoenix 
Ins.  Co.  v.  Allen,  11  Mich.  501;  Grif- 
fith V.  Crogan,  13  Cal.  317;  Putnam 
V.  Lewis,  8  John.  389;  Brewster  v. 
Bours,  8  Cal.  501;  Lee  v.  Tinges,  7 
Md.  215;  Smith  v.  Owens,  21  Cal.  11. 


373  CONVENTIONAI.    LIQUIDATIONS    AND    DISCIIAltGES. 

itor  that  it  remains  unpaid ;  he  must  account  for  it ;  and  the  same 
if  he  receive  a  check.  Such  paper  must  be  produced  at  the  trial 
in  an  action  on  the  original  consideration,  unless  it  has  been  lost, 
that  it  may  be  surrendered  or  canceled.^ 

By  accepting  the  note,  bill  or  check,  either  of  the  debtor  or 
of  a  third  person,  as  conditional  payment,  the  creditor  accepts 
the  duty  of  doing  anything  in  respect  to  it  which  is  necessary 
not  only  to  obtain  payment  by  due  presentment,  but  also  by 
l^rotest  and  notice  to  fix  the  h  ability  of  the  parties.  And  the 
onus  is  upon  him  to  show  that  he  has  performed  that  duty.^ 
If  there  are  other  parties  to  such  paper  to  which  the  holder 
could  resort  in  case  of  its  dishonor,  any  want  of  diligence,  on. 
the  part  of  the  creditor  receiving  it,  by  which  such  parties  are 
discharged,  will  preclude  such  creditor  from  returning  it  and 
suing  upon  the  original  debt.* 

There  is  not  the  same  arbitrary  strictness  in  the  rule  of  dili- 
gence, and  in  respect  to  consequences  of  neglect,  where  a  check 
is  received  as  a  mean^of  payment,  or  even  as  payment,  as  pre- 
vails in  regard  to  notes  and  biUs.  The  drawer  is  in  no  case  dis- 
charged from  his  responsibilit}^  to  pay  the  check,  unless  he  has 
suffered  some  loss  or  injury  by  the  omission  or  neglect  to  make 
presentment,  and  then  ovlj  ;pro  tanto}    But  a  chose  in  action 

iMcConnell  v.   StUliuius,  2  Gilm.      Fox,  39  Barb.  203;  S.  C.  16  Abb.  Pr. 
707;  Dangerfield  v.   Welby,  4  Esp.      51;   38  N.  Y.  289;    Story  on  Prom. 
159;    Hodwin     v,     Mendizabel,     10     Notes,  §  498;  Roberts  v.  Thompson, 
Moore,  477;  Jeffrey  v.  Cornish,  10  N.      14  Ohio  St.  1., 
H.  505;  Mehlberg  v.  Fisher,  24  Wis 
607;  Dayton  v.  Trull,  23  Wend.  345 
Burdick    v.    Green,    15    John.    247 
Smith    V.    Rogers,     17    John.    340 
Hughes  V.   Wheeler,  8  Cowen,  78 
Eastman  v.    Porter,    14    Wis.    39 
Plant  Manuf .  Co.  v.  Fulvey,  20  Wis 
200;  CromweU  v.  Levitt,  1  HaU,  56 


3  Id. 

4  Story  on  Prom.  Notes,  §  497; 
Kent's  Com.  Lee.  44;  Cruger  v. 
Armstrong,  3  John.  Ca.  5;  Conroy 
V.  Warren,  id.  259;  Murray  v,  Ju- 
dah,  6  Cow.  484;  Commercial  Bank 
V.  Hughes,  17  Wend.  94;  Harbeck  v. 
Craft,  4  Duer,  122;  Mohawk  Bank 

Taylor  v.  Allen,  36  Barb.  229.  v.  Broderick,  10  Wend.  304;  Little  v. 

2  The  Phoenix  Ins.  Co.  v.  Allen,  11  Phoenix  Bank,  2  Hill,  425;  Serle  v. 
Mich.  501;  Dayton  v.  TruU,  23  Norton,  2  Mood.  &  Rob.  401;  HUl 
Wend.  345;  Cooper  v.  Powell,  An-  v,  Beebe,  13  N.  Y.  556.  In  Bradford 
thon.  68;  Little  v.  Phoenix  Bank,  2  v.  Fox,  33  N.  Y.  289,  the  defendant 
Hill,  425;  affirmed,  7  Hill,  359;  Jen-  averred  payment,  and  it  was  held 
nison  v.  Parkt-r,  7  IMich.  355;  Heartt  that  though  made  by  a  check  the 
V.  Rhodes,  66  111.  351;  Bradford  v.      onus    of   proving    that    the    check 


PAYMEXT. 


879 


iu  any  form,  received  as  conditional  payment  or  as  collateral 
secm-ity,  to  the  extent  collected  or  paid ;  or  of  the  loss  by  the 
creditor's  negligence ;  or  when  transferred  by  the  creditor  to  a 
third  person,  unless  taken  back,  is  payment  on  9;CC0unt  of  the 
debt  for  which  it  was  received.^  So  if  the  creditor  take  from 
his  debtor  an  order  or  note  payable  to  a  third  person.^ 

Collaterals  collected,  or  lost  by  negligexce  of  creditor, 
ARE  to  be  credited  AS  PAYMENTS. —  Whcu  sccurity  is  given  for  a 
debt,  and  money  is  reahzed  from  that  secnrity,  it  is,  as  has  just 
been  said,  a  payment  -pro  tanto?  The  money  so  received  is 
deemed  so  appropriated  by  mutual  agreement.*  It  is  paj^ment, 
not  merely  a  set-off ;  ^  but  if  the  debtor  pays  his  debt  after  such 
collections  on  collaterals,  he  may  recover  them  from  the 
creditor.^ 


resulted  in  payment  was  on  him. 
Grover,  J.,  said:  "To  effect  this, 
proof  of  the  dehvery  and  receipt  of 
the  check  by  the  plaintiif  not  being 
sufficient,  tlie  defendant  was  bound 
to  go  further  and  show  that  by  tlie 
laches  of  the  plaintiffs  a  loss  had 
been  incurred,  to  be  bonie  by  some 
one;  and  v.dien  this  appeai'ed,  the 
law  would  cast  the  loss  upon  the 
l^laintilf ,  and  would  work  out  such 
result  by  making  the  check  operate 
as  payment  of  the  debt."  It  is  be- 
lieved, however,  that  after  delivery 
of  a  check  to  a  creditor  as  a  means 
of  payment,  the  weight  of  authority 
puts  the  burden  of  proof  on  him  to 
show  that  the  check  was  unproduc- 
tive; and  if  there  has  been  a  want 
of  diligence,  that  no  loss  or  injury 
has  resulted  to  the  debtor.  MuiTay 
V.  Judah,  9  Cow.  484;  The  Syracuse 
B.  &  N.  Y.  R.  E.  Co.  V.  Collins,  3 
Lans.  29. 

'  Harris  v.  Johnston,  3  Cranch, 
311;  John  V.  John,  Wright  (Ohio), 
584;  McCluny  v.  Jackson,  6  Gratt. 
96;  Parker  v.  U.  S.  1  Pet.  C.  C.  263; 
Lawrence    v.    Schuvlkill  &    Co.    4 


Wash.  C.  C.  563;  Bells  v.  Porter,  9 
Conn.  23. 

2  Shaw  V.  Gookin,  7  N.  H.  16. 

3  Ante,  p.  370.  See  New  London 
Bank  v.  Lee,  11  Conn.  113.  A 
mortgage  to  indemnify  an  accom- 
modation indorser,  or  other  surety, 
is  not  available  as  security  for  the 
debt,  either  to  relieve  the  in- 
dorser or  surety  from  paying  it 
(Post  V.  Tradesmen's  Bank,  28  Conn. 
420;  Horner  v.  Savings  Bank,  7 
Conn.  478),  or  as  a  means  of  payment 
at  the  instance  of  the  creditor.  Ohio 
Life  Insurance  &  Trust  Co.  v. 
Reeder,  18  Ohio,  35,  46.  See  Russell 
V,  La  Roqtie,  13  Ala.  149. 

^Pope  V.  Dodson,  58  111.  360;  Kem- 
mel  V.  Wilson,  4  Wash.  C.  C.  308; 
Midgley  v.  Slocomb,  2  Abb.  N.  S. 
275;  Lincoln  v.  Bassett,  23  Pick.  154; 
Keunester  v.  Avery,  16  N.  H.  117; 
Dismaker  v.  Wright,  3  Dev.  &  Bat. 
78. 

5  King  V.  Hutchins,  28  N.  H.  561; 
In  re  Ouemette,  1  Sawyer,  47. 

«  Overstreet  v.  Nuim,  36  Ala.  686; 
Dorrill  v.  Eaton,  35  Mich.  403. 


380  CONVENTIOKAL    LIQUIDATIONS    AND    DISCIIAKGES. 

There  is  an  implied  obligation  of  tlie  creditor  to  account  for 
the  proceeds  of  collaterals.  His  failure  or  refusal  to  give 
an  account  of  the  application  of  goods  received  as  collateral 
security  for  a  debt,  will  operate  as  a  bar  to  the  recovery  of  the 
debt  itself.^  But  where  the  collateral  securities  are  placed  in 
the  hands  of  a  third  person  by  the  debtor,  and  were  never  in 
the  hands  or  under  the  control  of  the  creditor,  he  is  entitled  to 
recover  against  the  debtor  without  accounting  for  the  col- 
laterals.2  If  bank  bills  have  been  received  as  collateral  se- 
curity, it  lies  on  the  creditor  in  a  suit  against  a  surety  to  show 
what  has  been  done  with  them.^ 

Taking  a  collateral  does  not  suspend  the  right  to  bring  suit 
on  the  debt  secured.'*  Nor  can  the  debtor  obtain  credit  thereon 
for  such  collateral,  unless  it  has  been  collected  or  appropriated 
by  the  creditor,  or  lost  by  his  negligence  or  fault.^ 

Negotiable  paper  received  as  a  means  of  payment  is  prima 
facie  payment,  and  the  creditor  must  show  what  has  become  of 
it;  show  diligence  to  obtain  payment,  or  excuse  non-present- 
ment, and  produce  the  bill  at  the  trial.^  A  note  delivered  as 
collateral  security  continues  a  vaUd  security  until  the  debt  is 
paid,  notwithstanding  it  is  changed  in  form,  as  from  a  note  into 
a  judgment.'^  And  a  creditor  who  holds  security,  without 
special  instructions  for  its  apphcation,  for  various  notes  due 
from  his  debtor,  some  of  which  bear  the  names  of  sureties,  may, 
in  case  of  the  insolvency  of  the  principal  debtor,  and  of  some  of 
the  sm^eties,  apply  the  same  towards  the  payment  of  such  of  the 
notes  as  may  be  necessary  for  liis  own  protection ;  and  solvent 
parties  upon  others  cannot  avail  themselves  thereof  in  any  way, 

^  Limes  v.  Zaur,  1  Phil,  (Pa.)  500;  v.  Morrow,  4  Ind.  425;  Hall  v.  Green^ 
Dessol  V.  Bragmiere,   50   Cal.   456;      14  Ohio,  499;  Prettj^man  v.  Barnard, 

2  Bank  of  U.  S.  v.  Peabody,  20  Pa.      37  III.  105. 

St.  454.  e  Dayton   v.  TriiU,  23  Wend.  345; 

3  Spalding  v.  The  Bank  of  Susque-  Cooper  v.  Powell,  Anth.  68;  Robert- 
hanna  Co.  9  Pa.  St.  28.  sou  v.  Gallagher,  1  Wash.  C.  C.  156; 

^Dugan  V.  Sprague,   2  Ind.   600;  Brown  v.  Cronise,  21  Cal.  386;  Plant's 

Foster  v.  Pardy,  5  Met.  442;  Lincoln  Manufacturing    Co.   v.    Fulvey,    20 

V.  Bassett,  23  Pick.  154.  Wis.    200;    Bullard    v.   HascaU,    25 

5 Id.;  Fisk  v.  Stevens,  21  Me.  457;  Mich.  132. 

Hawks  V.  Henchcliff,  17  Barb.  493;  7  Fisher  v.  Fisher,  98  Mass.  303. 
Cook  V.  Chany,  14  Ala.  65;  Stevens 


PAYMENT. 


381 


in  equity,  without  paying  or  offering  to  pay  the  whole  of  the 
notes  for  which  the  security  was  given.^ 

A  creditor  is  only  obliged  to  apply  the  net  proceeds  of  col- 
laterals. Expenses  necessarily  incurred  in  rendering  them 
available  are  to  be  deducted,  and  the  balance  only  is  a  payment 
upon  the  debt  secured.^  But  the  equitable  interest  of  the  as- 
signee of  a  promissory  note,  not  negotiable,  assigned  as  collat- 
eral security  merely,  extends  only  to  the  amount  of  the  debt 
for  the  security  of  which  it  was  assigned,  and  not  to  the  costs 
which  have  accrued  in  a  suit  subsequently  brought  thereon. 
And  a  release  from  the  payee  executed  subsequent  to  the  assign- 
ment, will  be  available  for  all  of  such  collateral  in  excess  of 
such  debt.^    A  chose  in  action  which  is  transferred  as  collateral 


1  Wilcox  V.  Fairhaven  Bank,  7 
Allen,  270.  F  and  H  made  and  de- 
livered to  S  their  joint  and  several 
note  for  $4,500;  before  its  maturity 
S  gave  his  note  for  $1,000  to  C,  and 
indorsed  and  delivered,  as  collateral, 
the  note  of  F  and  H.  C  subse- 
quently assigned  S's  note  to  F,  and 
delivered  the  note  of  F  and  H  as 
collateral  security.  After  this,  S 
sold  and  assigned  the  note  of  F  and 
H,  then  in  the  hands  of  F,  to  D, 
who  thereafter  demanded  the  $4,500 
of  F,  offering  to  credit  the  same 
■>vith  the  amount  of  the  $1,000  note, 
Avhich  was  refused.  Held,  that  D 
was  entitled  to  recover  on  the  note 
iigainst  F  and  H  less  the  amount  of 
the  $1,000  note. 

2Stan-ett  v.  Barber,  20  Me.  457; 
Harrington  v.  Pauly,  26  lU.  94;  Van 
Blarcum  v.  Broadway  Bank,  37  N. 
Y.  540. 

3  Blake  v.  Buchanan,  22  Vt.  548. 
The  defendant  and  one  A  of  Mas- 
sachusetts exchanged  notes  in  Au- 
gust, 1854,  of  equal  amounts  and 
having  equal  time  to  run.  Later  in 
the  same  month,  A  deposited  de- 
fendant's notes  and  others  as  collat- 
eral, and  procured  a  discount  of  his 


own  note  for  §8,000  by  plaintiff. 
The  note  had  ten  days  to  nm;  A 
failed  to  pay  it,  and  was  driven  into 
insolvency.  Separate  suits  were 
brought  against  the  defendant  on 
his  notes  when  they  became  due. 
At  the  time  of  bringing  these  suits, 
between  three  and  four  thousand 
dollars  of  the  collaterals  had  been 
paid.  When  the  actions  (together) 
were  tried,  the  collaterals  had  been 
paid  in  to  an  amount  sufficient  to 
pay  the  plaintiff's  claim,  except 
about  two  hundred  dollars.  Held, 
that  the  plaintiff  should  have  judg- 
ment for  the  full  amount  of  the 
notes,  interest  and  costs,  but  the 
rights  of  the  defendant  should  be 
provided  for  by  an  order  in  the  judg- 
ment permitting  him  to  be  dis- 
chai-ged  by  paying  the  balance  due 
the  plaintiff  Avith  costs;  the  residue 
to  be  paid  into  court  to  be  subject 
to  the  further  order  of  the  court  on 
the  application  of  A's  assignees,  or 
of  A,  on  notice.  Nantucket  Pacific 
Bank  v.  Stebbins,  6  Duer,  341, 

In  Russell  v.  La  Rogue,  13  Ala. 
149,  it  was  held  that  where  a  surety 
received  from  his  principal  a  note  as 
indemnity,  and  passed  the  same  over 


SS2 


CONVENTIONAL   LIQUIDATIONS    AND   DISCHAEGES. 


security  is  put  under  the  control  of  the  creditor,  to  make  his 
claim  out  of  it,  and  it  is  not  in  the  nature,  or  subject  to  the  in- 
cidents of  a  pawn  or  pledge.  It  should  be  collected,  not  sold.^ 
A  creditor  receiving  collateral  securities  is  requked  to  use 
ordinary  diligence,  and  to  observe  good  faith  in  respect  to  the 
same ;  if  they  are  lost  or  impaired  through  his  fault  or  neglect, 
he  is  liable  to  the  debtor  to  the  extent  of  the  injury ;  and  such 
damages,  or  so  much  as  is  necessary  therefor,  will  enure  as  a 
payment  of  the  debt  for  which  they  were  received  as  security .^ 
If  the  collaterals  be  negotiable  paper  to  mature  at  a  future  day, 
due  diligence  imposes  on  the  creditor  the  necessity  of  doing 
those  acts  which  will  preserve  the  hability  of  indorsers  or  other 
secondary  parties.'  In  case  of  neglect,  the  creditor  is  liable  for 
the  actual  loss,  and  no  more ;  *  and  the  07ius  is  on  the  debtor  to 
show  the  extent  of  the  injury.^     So  if  the  creditor  receives  a 


to  the  creditor  as  collateral  security 
for  the  principal;  held,  that  the  cred- 
itor could  not  recover  upon  such 
note  after  the  principal  debt  was 
barred  by  the  statute  of  limitations; 
but  it  would  have  been  otherwise  if 
the  note  had  been  delivered  to  the 
creditor  in  discharge  of  the  surety's 
liability. 

1  Chambersburg  Ins.  Co.  v.  Sniitli, 
11  Pa.  St.  120;  Nelson  v.  Wellington, 
5  Bosw.  178;  Brookman  v,  Metcalf, 
5  Bosw.  429. 

2  Roberts  v.  Gallagher,  1  Wash.  C. 
C.  156;  Gallagher  v.  Roberts,  2 
Wash.  C.  C.  191;  Hanna  v.  Hollon, 
78  Pa.  St.  324;  Ins.  Co.  v.  Marr,  46 
Pa.  St.  504;  Miller  v.  Gettysburg 
Bank,  8  Watts,  192;  Dyott's  Est.  2 
Watts  &  S.  463;  Lishy  v.  O'Brian,  4 
Watts,  141;  Bank  of  U.  S.  v.  Pea- 
body,  20  Pa.  St.  454;  Chambersburg 
Ins.  Co.  V.  Smith,  11  Pa.  St.  120; 
Sellers  v.  Jones,  22  Pa.  St.  427;  Muir- 
head  v.  Kirkpatrick,  21  Pa.  St.  237; 
Foot  v.  Brown,  2  McLean,  369; 
Brown  V.  Cronise,  21  Cal.  386;  Whit- 
tier  v.  Wright,  34  Mich.  92;  Exeter 


Bank  v.  Gordon,  8  N.  H.  66;  Fennell 
V,  Meaux,  3  Bush,  449;  Kenniston  v. 
Avery,  16  N.  H.  117;  Matter  of 
Brown,  2  Story.  502;  Chamberlynv. 
Delarive,  2  Wilson,  353;  Beula  v. 
Curry,  3  Bush,  678;  Russell  v.  Hes- 
ter, 10  Ala.  535;  Powell  v.  Henry, 
27  Ala.  612;  Lee  v.  Baldwin,  10  Ga. 
208;  Garden  v.  Jones,  23  Ga.  175; 
Kiser  v.  Ruddick,  8  Blackf.  382; 
Noland  v.  Clark,  10  B.  Mon.  239; 
Hoffman  v.  Johnson,  1  Bland,  103; 
Steger  v.  Bush,  Sm.  &  M.  Ch. 
172;  Barrows  V.  Rhinelander,  3  John. 
Ch.  619;  Jennison  v.  Parker,  7  Mich. 
355;  Goodhall  v.  Ricliardson,  14  N. 
H.  567;  White  v.  Howard,  1  Sandf. 
81;  Nixsen  v.  Lyell,  5  HiU,  466. 

3  Jennison  v.  Parker,  7  Mich.  355; 
Russell  V.  Hester,  10  Ala.  535;  Ken- 
niston V.  Avery,  16  N.  H.  117;  Foot 
V.  Brown,  2  McLean,  369;  Brown  v. 
Cronise,  21  Cal.  386;  Phoenix  Ins. 
Co.  V.  Allen,  11  Mich.  501. 

^Aldrich  v.  Goodell,  75  lU.  452; 
Coonley  v.  Coonley,  Hill  &  D.  Svipp. 
312. 

5  Id. ;  Fiske  v.  Stevens,  21  Me.  457. 


PAYMENT.  383 

check  ill  payment  of  a  debt,  and  unreasonably  delays  present- 
ing it,  he  is  only  liable  for  the  actual  injury  to  the  di^awer.^ 

A  transfer  of  the  collateral  by  the  creditor  is  an  appropria- 
tion of  it,  and  he  will  be  held  to  have  elected  to  take  it  for 
what  appears  by  its  face  to  be  due  thereon  in  satisfaction  to 
that  extent.-  If  he  transfers  the  collateral  for  less  than  its 
face,  it  is  his  loss."  He  must  settle  with  the  debtor  for  the 
whole  nominal  value  of  the  collateral,  though  he  settled  ^vith 
the  maker  for  less,  or  took  a  note  in  part  satisfaction.*  A  cred- 
itor may  reUnquish  a  collateral  security  to  his  debtor,  without 
the  consent  of  other  creditors,  and  not  thereby  lose  his  resort  to 
the  debtor's  property.*  But  a  surety  would  be  discharged  by 
such  relinquishment ;  for  the  creditor  is  bound  to  hold  security 
for  the  benefit  of  the  surety  as  well  as  for  himself;  and  if  he 
parts  with  it  without  the  knowledge  or  against  the  will  of  the 
sm-et}^,  he  will  lose  his  claim  against  the  surety  to  the  value  of 
what  is  so  surrendered.^ 

One  who  receives  from  his  debtor,  as  collateral,  negotiable 
paper  of  a  third  person  indorsed  by  the  debtor,  makes  it  his 
own  and  releases  the  debtor's  indorsement,  if  he  neglects  to 
protest  it  for  non-payment.'^    A  creditor  having  a  note  for  the 

iBell  V.  Alexander,  21  Gratt.  1.  eluded.     Marston,  J.,  delivering  the 

''Hawks  V.   Hinclicliff,    17    Barb,  opinion  of  the  court,  said:  "  It  is  of 

492.  the  utmost  importance  that  no  un- 

3  Id.  certainty    should    exist    as    to    the 

^Dupay    V.   Clark,    12    Ind.   427.  rights  and  liabilities  of   parties  to 

See  Garlick  V.  James,  12  John.  146;  negotiable  paper.     Shoidd  the  iutro- 

Phillips  V.  Thompson,  2  John.  Ch.  duction  of  evidence  upon  the  trial 

418.  be  sanctioned,  to  show  that  an  in- 

5  In  Matter  of  Dyott,  2  W.  &  S.  dorser  had  not  suffered  any  injury 
463.  from  a  want  of  protest  and  notice, 

6  Stewart  v.  Davis,  18  Ind.  74.  an  element    of    uncertainty  would 

7  Whitten  v.  Wriglit,  34  Mich.  93.  then  exist,  and  the  way  would  be 
In  this  case,  upon  the  trial  the  plaint-  opened  for  a  new  class  of  questions 
iff  offered  to  show  that  at  the  time  and  much  needless  litigation.  The 
the  note  was  given  the  maker  was  value  of  a  note  cannot  always  be  de- 
insolvent,  that  he  was  so  at  the  time  termined  from  the  solvency  or  in- 
of  its  maturity,  and  continued  so  up  solvency  alone  of  the  maker.  As 
to  the  time  of  tlie  trial,  for  the  pur-  w-as  said  in  Rose  v.  Lewis,  10  Mich, 
pose  of  showing  that  thougli  the  485,  'the  value  of  negotiable  paper 
note  was  not  properly  protested,  the  is  well  understood  not  to  be  abso- 
defendant  lost  nothing  by  it.  That  lutely  dependent  on  the  amount  of 
evidence    was    held    properly    ex-  property  liable  to  execution  which 


3S4: 


CONVENTIONAL    LIQUIDATIONS    AND    DISCIIAEGES. 


purchase  money  of  a  slave,  on  tlie  death  of  the  purchaser,  took 
possession  of  the  slave;  he  was  held  liable  for  the  injury  done 
to  the  estate  as  executor  de  son  tort,  and  the  amount  of  such 
liability  payment  so  far  upon  the  note.^  A  creditor  who  in- 
cluded in  a  mortgage  a  premium  for  a  policy  of  insurance  on 
the  life  of  the  debtor,  as  additional  security  for  the  debt,  and 
neglected  to  effect  the  insurance,  was  held  liable  as  upon  an  ex- 
press agreement  to  insure,  and  liable  for  the  amount  of  the  sum 
for  which  he  should  have  procured  insurance.^ 

"Wno  MAY  MAKE  TAYMENTS. —  The  general  rule  as  to  payment 
or  satisfaction  by  a  thh'd  person,  not  himself  liable  as  a  co- 
contractor  or  otherwise,  seems  to  be  that  it  is  not  suificient  to 
discharge  the  debtor,  unless  it  is  made  as  agent  for  and  on 
account  of  the  debtor,  and  with  his  prior  authority  or  subse- 
quent ratification ;  but  the  debtor  may  ratify  the  payment  by 
pleading  it,  unless  he  has  previously  disavowed  it.'' 


may  be  possessed  by  the  maker.  A 
very  large  portion  of  current  secu- 
rities of  undoubted  goodness  would, 
under  such  a  test,  be  worthless. 
And  in  cases  where  the  holder  of 
such  paper  is  indebted  to  the  maker, 
it  may  be  as  valuable  to  him,  by  way 
of  set-off,  as  if  the  maker  were 
wealthy,  and  in  sound  credit.  The 
value  of  commercial  paper  must  al- 
ways depend  very  much  upon  the 
integrity  and  business  habits  of 
those  who  issue  it.  And  we  cannot 
perceive  the  justice  or  good  sense  of 
any  rule  which  should  disregard  the 
results  of  common  experience.'  If 
the  note  in  this  case  had  been  prop- 
erly protested  and  notice  given  to 
the  defendant,  he  might  have  been 
able  to  collect  it  or  secure  its  pay- 
ment. We  think  the  evidence  was 
properly  excluded." 

1  Fennell  v,  Meaux,  3  Bush,  449. 

^  Souls  V.  Union  Bank,  45  Barb. 
Ill;  30  How.  Pr.  105. 

3  Simpson  v.  Eggington,  10  Exch. 
845;  James  v.  Isaacs,  22  L.  J.  C.  P. 


73;  Belshaw  v.  Bush,  11  C.  B.  191; 
Jones  V.  Broadhurst,  9  C.  B.  193; 
Clow  V.  Borst,  6  John.  37;  Stark  v. 
Thompson,  3T.  B.  Mon.  296;  Wood- 
folk  V.  McDowell,  9  Dana,  268;  Lucas 
V.  Wilkinson,  1  Hurl.  &  N.  420.  In 
a  note  to  Simpson  v.  Eggington,  it 
is  said  that  ' '  the  rule  wliich  requires 
the  consideration  to  move  between 
the  parties  has  been  modified  in 
many  important  particulars  by  the 
introduction  of  the  action  for  money 
had  and  received,  and  it  would  seem 
only  reasonable  to  permit  a  debt  to 
be  extinguished  by  a  payment  made 
to  a  creditor,  whenever  the  circum- 
stances are  such  that  the  amount 
paid  might  have  been  recovered  by 
the  debtor  had  no  debt  existed." 

In  Jones  v.  Broadhurst,  Creswell, 
J.,  said:  "As  the  court  has  been 
called  upon  to  consider  the  law  in 
relation  to  the  subject,  it  may  be  a 
convenience  to  the  profession  to 
mention  the  authorities  which  are  to 
be  found  upon  the  subject.  It  may 
appear  that  the  law  is  not  perfectly 


TAYIIENT. 


385 


settled.  Tlie  authorities  of  the  text- 
books are  generally  to  be  found 
under  the  title  of  'Accord  and  Sat- 
isfaction;' and  most,  if  not  all,  of 
such  text-books  refer  to  accord  and 
satisfaction  by  and  between  the 
parties  to  the  cause  of  action,  and 
but  veiy  few  authorities  are  to  be 
found  upon  the  subject  of  satisfac- 
tion made  by  a  stranger.  Notwith- 
standing the  passages  referred  to  in 
the  text-books,  there  is  very  early 
authority  to  the  effect  that  satisfac- 
tion made  by  a  stranger  to  a  party 
having  a  cause  of  action,  may  be 
used  as  a  good  bar  to  an  action  for 
such  cause.  It  is  stated  in  Fitz- 
herbert's  Abridgment,  title  Barre, 
pi.  166  (Hilary,  36  H.  6),  that  If  a 
stranger  does  trespass  to  me,  and 
one  of  his  relations,  or  any  other, 
gives  anything  to  me  for  the  same 
trespass,  to  wliich  I  agree,  the 
stranger  shall  have  the  advantage  of 
that  to  bar  me;  for  if  I  be  satisfied, 
it  is  not  reason  that  I  be  again  satis- 
fied—  quod  tota  curia  concessit.'  A 
very  diligent  search  has  not  found 
any  old  authority  inconsistent  with 
the  case  in  Fitzherbert.  In  several 
cases,  obligations  given  by  strangers 
to  parties  having  a  cause  of  action, 
have  been  held  to  be  no  bar  to  an 
action  between  the  parties  to  such  a 
cause;  but  it  will  be  found  that  all 
these  cases  were  decided  upon  the 
ground  that  the  obligation  so  given 
was  collateral,  and  not  by  way  of 
satisfaction,  or  in  extinguishment  or 
merger.  In  connection  with  this 
branch  of  the  law,  this  considera- 
tion will  always  be  found  material. 
In  Fitzherbert's  Abridgment,  title 
ditto,  pi.  83,  it  is  said:  '  In  debt  on 
contract,  it  is  no  plea  to  say  that  the 
plaintiff  has  a  bond  of  a  stranger 
for  the  same  duty;  but  to  say  that 
he  has  a  bond  of  the  defendant  him- 
self for  the  same  duty,  is  a  good  plea.' 
Vol.  1  —  25 


So  in  F.  N.  B.  131  M.,  it  is  said: 
'If  a  man  contract  to  p.':v  money 
for  a  thing  which  he  hatli  bought,  if 
he  makes  a  bond  for  the  moue3%  the 
contract  is  discharged,  and  an  action 
of  debt  will  not  lie  upon  the  con- 
tract.' *  But  it  is  otherwise  if  a 
stranger  makes  an  obligation  for  the 
same  debt.'  5  Vine's  Abridgment, 
515,  is  to  the  same  effect;  also 
Brooke's  Abridgment,  title  Con- 
tract, pi.  29.  In  Pudsey's  Case,  cited 
in  Hooper's  Case,  2  Leonard,  110,  it 
was  held  that  a  bond  given  by  a 
stranger,  pursuant  to  a  stipulation  in 
the  original  contract,  will  be  a  bar; 
but  otherwise,  upon  a  subsequent 
contract.  ^  The  same  was  decided  in 
the  principal  case  of  Hooper. 

"Some  doubt  lias  arisen  upon  the 
point  of  satisfaction  by  a  stranger, 
from  the  case  of  Grymes  v.  Blofield, 
Cro.  Ehz.  541.  The  report  in  Cro. 
Ehz.  states  it  to  have  been  an  action 
on  an  obligation  for  20Z.  The  defend- 
ant pleaded  that  J  S  had  surren- 
dered a  copyhold  tenement,  in  satis- 
faction, which  the  plaintiff  accepted. 
The  plaintiff  demurred  to  the  plea, 
and  it  is  said  that  Popham  and 
Gawdy,  JJ.,  held  it  to  be  no  plea; 
for  J  S  was  a  mere  stranger,  and' 
not  privy  to  the  condition,  and  there- 
fore satisfaction  by  him  "was  not 
good;  and  afterwards,  in  Easter 
term,  81  Eliz.,  Popham  and  Clench 
adjudged  for  the  plaintiff,  in  the 
absence  of  the  rest  of  the  justices. . 
In  Comyn's  Digest,  the  case  is  stated 
to  the  same  effect.  But  from  the 
report  of  the  same  case  in  Eolle's 
Abridgment,  it  is  to  be  infeiTed  that 
the  judgment  was  given  for  the 
defendant.  In  the  case  of  Edgcombe 
V.  Rodd,  5  East,  294,  which  was  an 
action  for  trespass  and  false  im- 
prisonment, to  which  satisfaction 
by  another  party  was  pleaded  (upon 
the  authority  of  Grymes  v.  Blofield), 


886 


CONVENTIOXAL    LIQUIDATIONS   AJ^D   DISCHARGES. 


accrediting  the  report  in  Cro.  Eliz., 
because  cited  in  Comyn's  without 
disapprobation, —  the  court  seems  to 
have  thought  the  plea  bad,  as  setting 
up  satisfaction  by  a  stranger.  In 
Edgcombe  v.  Rodd,  however,  tlie 
plea  was  held  to  be  bad,  upon 
another  substantial  ground,  uiDon 
which  judgment  rather  seems  to 
have  been  founded. 

"  The  rolls  of  the  court  have  been 
searclied  to  ascertain  the  real  state 
of  the  case  of  Grjanes  v.  Blofield; 
but  without  much  satisfaction  be- 
mg  obtained.  Thei"e  are  three  rolls, 
importing  three  distinct  actions 
upon  three  obligations  for  201.,  and, 
in  each  case,  a  plea  of  satisfaction 
by  J  S  by  the  surrender  of  the  copy, 
hold.  .  .  .  Upon  further  in- 
quiry being  made,  there  has  been 
found  a  report  of  the  case  in  the 
MSS.  reports  in  the  British  Museum, 
in  the  Hargrave  MSS.  No.  7,  vol.  2, 
251,  reports  by  Humphrey  Were. 
The  case  is  reported  in  substance,  as 
in  Cro.  Eliz.,  .  .  .  and  it  states 
that  Fenner,  J.,  doubted  of  the  oiiin- 
ion  of  Popham  and  Gowdy,  by  rea- 
son of  the  acceptance  of  the 
plaintiff,  and  cites  the  36  H.  6,  title 
Barre,  whicli  is  the  case  refei'red  to 
in  Fitzlierbert's  Abridgment;  and 
it  afterwards  states,  that,  upon  the 
case  being  moved  again,  Clench  and 
Fenner  agreed  that  the  plea  was  a 
good  bar;  and  that  Gowdy  said  the 
case  of  trespass,  36  H.  6,  was  good 
law;  and  the  report  then  states  that 
in  Easter  term,  39  Eliz.,  the  plaintiff 
had  judgment  to  recover;  —  Popham 
and  Clench  only  being  in  court.  .  .  . 
It  seems  probable  tliat  the  report  in 
Croke,  stating  the  judgment  to  have 
been  given  for  the  plaintiff,  is  cor- 
rect; although  no  answer  is  sug- 
gested to  the  authority  of  36  H.  6, 
which  seems  contrary  to  the  de- 
cision, and  to  have  been  referred  to. 


"InThui-man  v.  Wild,  11  Ad.  & 
El.  453,  3  P.  &  D.  289,  the  question  as 
to  the  effect  of  satisfaction  by  a 
stranger,  also  arose;  and  the  court 
seemed  to  recognize  the  decision  of 
Grymes  v,  Blofield  as  correct;  but 
held  that  the  satisfaction  pleaded  in 
that  case  was  a  good  bar,  because 
made  by  one  who  was  not  a  stranger, 
but  a  joint  trespasser;  and,  there- 
fore, it  became  unnecessary  to  de- 
cide how  far  satisfaction  by  a 
stranger  would  have  been  a  good 
bar.  Such  seems  to  be  the  state  of 
authority  (1850)  upon  that  question; 
and  the  court  does  not  feel  called 
upon  to  express  an  opinion  upon  the 
point,  although  it  must  be  obvious 
that  the  decision  in  36  if.  6  is  con- 
sistent with  reason  and  justice." 

In  Bolshaw  v.  Bush,  11  Com.  B. 
191  (1851),  Maule,  J.,  said:  "If  a  bill 
given  by  the  defendant  himself  on 
account  of  the  debt,  operate  as  a 
conditional  pajmient,  and  so  be  of 
the  same  force  as  an  absolute  pay- 
ment by  the  defendant,  if  the  con- 
dition by  which  it  is  to  be  defeated 
has  not  arisen,  there  seems  no  rea- 
son why  a  bill  given  by  a  stranger 
for  and  on  account  of  the  debt, 
should  not  opei-ate  as  a  conditional 
payment  by  the  stranger;  and,  if  it 
have  that  operation,  the  plea  in  the 
present  case  wiU  have  the  same  ef- 
fect as  if  it  had  alleged  that  the 
money  was  paid  by  William  Bush 
(the  stranger)  for  and  on  account  of 
the  debt.  But,  if  a  stranger  give 
money  in  pajanent,  absolute  or  con- 
ditional, of  the  debt  of  another,  and 
the  causes  of  action  in  respect  to  it, 
it  must  be  payment  on  behalf  of  the 
other,  against  whom  alone  the 
causes  of  action  exist;  and,  if  adopted 
by  him,  will  operate  as  payment  by 
himseff."     Coke,  Litt.  2066,  36  H.  6. 

James  v,  Isaac,  12  C.  B.  791  (1852). 
In  assumpsit  for  work  and  labor,  the 


PAYMENT, 


387 


A  purchaser  of  mortgaged  property  subject  to  the  mortgage 
may  pay  the  debt,  and  payment  by  such  a  person  would  have 
the  effect  to  extinguish  it.^  If  a  mere  stranger  or  volunteer 
pays  a  debt  for  which  another  is  bound,  he  cannot  be  subrogated 
to  the  creditor's  rights  in  respect  to  the  security  given  by  the 
real  debtor.  But  if  the  person  who  paj^s  the  debt  is  compelled 
to  pay,  for  the  protection  of  his  own  interests  and  rights,  then 
he  is  entitled  to  such  subrogation.^ 

To  wnoM  PAYiiENT  MAY  BE  MADE. —  Payment  must  be  made  to 
the  creditor,  or  to  one  authorized  by  him  to  receive  it  as  agent 
or  assignee ;  or  to  one  whom  the  law  substitutes  in  his  place  as 
executor,  administrator,  creditor  by  trustee  process,  or  the  like. 
Payment  of  a  judgment  or  decree  to  an  attorney  of  record 
who  obtained  it,  before  his  authority  is  revoked  and  notice  of 
it  given,  is  valid  as  to  the  party  making  the  payment.*  But 
payment  to  an  unauthorized  agent  is  a  nullity.^  Possession  of 
mercantile  paper  authorizes  the  receipt  of  the  money,  and  even 


defendant  pleaded  that  the  money 
mentioned  in  the  declaration,  ac- 
crued due  to  the  plaintiff  under  an 
agreement  for  the  building  of  a 
church ;  that  the  plaintiif  having  sus- 
pended the  work,  another  agreement 
vras  entered  into  between  him  and 
one  A,  under  which  the  plaintiff,  in 
consideration  of  certain  stipulated 
payments,  undertook  to  complete 
the  work,  and  to  rely  for  the  residue 
of  the  contract  price  upon  certain 
subscriptions,  which  were  to  be 
raised;  and  that  A  duly  made,  and 
the  plaintiff  received,  the  payments 
stipulated  for  by  the  second  agree- 
ment, in  satisfaction  and  discharge 
of  the  original  agreement  between 
the  plaintiff  and  the  defendants, 
and  of  the  performance  thereof  by 
tlie  latter;  held,  that  the  plea  was 
bad  in  substance,  inasmuch  as  it  did 
not  show^  that  the  agreement  made 
bj'  A,  and  the  pajments  under  it, 
were  intended  to  be  made  for  the 


benefit  of  the  defendants,  and  that 
they  adopted  A's  acts.  See  2  Am.  , 
Lead.  Cas.  4  ed.  270;  Wellington  v.  ^ 
Kelly,  84  N.  Y.  542;  Wolf  v.  Walter, 
56  Mo.  292.  In  Harrison  v.  Hicks,  1 
Port.  423,  the  payment  of  a  debt  by 
one  not  a  party  to  the  contract,  was 
held  an  extingiiishment  of  it, 
whether  made  by  the  consent  of  the 
debtor  or  not. 

In  People  v.  Brenan,  30  How.  Pr. 
417,  it  was  held  that  the  payment 
of  a  de  facto  officer's  salary,  was  no 
defense  to  the  claim  of  the  officer  de 
jure  for  the  same  time.  Belshaw  v. 
Bush,  supra;  Simpson  v,  Eggiugton, 
supra. 

1  Appledorn  v.  Steeter,  20  Mich.  9. 

2  Hough  V.  The  ^tna  Life  Ins. 
Co.  57  111.  318. 

3  Harper  v.  Harvey,  4  W.  Va.  539; 
Ycrkam  v.  Tilden,  3  id.  167. 

<  Adams  v.  Kearney,  2  E.  D. 
Smith,  43.  See  Kerneman  v.  Mona- 
ghan,  2  Mich.  36. 


38S  CONVENTIONAL    LIQUIDATIONS    AND   DISCHARGES. 

before  it  is  due.'  But  circumstances  may  impeach  a  payment 
made  to  one  having  possession  of  the  evidence  of  the  debt. 
Thus,  payment  by  the  maker  of  a  note  before  maturity  to  the 
son  of  the  hokler,  who  had  been  forbidden  to  take  payment, 
with  the  knowledge  of  the  party  paying,  is  not  a  good  pay- 
ment, although  the  note  is  delivered  up  by  the  son;  and  the 
father  may  maintain  a  suit  for  the  note,  not  having  ratified  the 
payment,^  The  circumstances,  however,  must  show  payment  in 
bad  faith ;  it  is  not  enough  that  there  is  gross  negligence  in  not 
ascertaining  the  party  entitled  to  the  money.' 

Payment  to  one  not  in  possession  of  the  note,  and  without  a 
surrender  of  it,  is  at  the  risk  of  the  payer ;  and  if  the  party  re- 
ceiving the  money  had  no  right  to  receive  it,  the  note  is  not  dis- 
charged.'* But  in  case  of  a  mortgage  or  other  non-negotiable 
evidence  of  debt,  probably  a  payment  in  good  faith  to  the  orig- 
inal holder,  in  the  absence  of  the  paper  evidence,  would  be 
treated  as  valid,  although  there  had  been  an  actual  assignment 
of  the  debt.^  Payment,  however,  may  not  be  made  to  an  as- 
signor after  notice  of  the  assignment  of  the  debt ;  ^  and  such 
payment  will  not  be  recognized,  even  if  the  assignor  still  has 
possession  of  the  securities ; ''  not  even  under  garnishment  pro- 
ceedings and  an  order  of  the  court,  if  that  defense  is  not  made.' 
Where  the  demand  has  been  assigned,  payment  as  garnishee  of 
the  original  creditor  is  not  good  unless  the  payment  is  compul- 
sory, though  there  has  been  no  notice  of  the  assignment,  for 
assignment  passes  the  title  without  notice.^ 

A  compulsory  payment  under  a  foreign  attachment  from  a 
com't  of  competent  jurisdiction  is  good,  and  will  be  recognized 

1  Bliss  V.  Cutler,  19  Barb.  9.  6  Lyman    v.    Cartright,    3    E.  D. 

^  Kingman  V.  Pierce,  17  Mass.  247.  Smith,    117;    Meriam    v.    Bacon,   5 

3Cathron  v.  CoUins,  29  How.  Pr.  Met.  95;  Guthrie  v.  Bashlino,  25  Pa. 

113;    Haescig    v.   Brown,  34  Mich.  St.  80;  Field  v.  Mayor,  etc.  N.  Y.  6 

503.  N.  Y.  179;  Ten  Eyck  v.  Simpson,  1 

« Wheeler  V.  Guild,  20  Pick.  545.  Sandf.  Ch,  244;  Whiting  v.  Street, 

5  Foster    v.    Beals,   21   N.  Y.   247.  Anth.  N.  P.  276. 

See    Richardson    v.   Ainsworth,   20  7  Chase  v.  Brown,  33  Mich.  225. 

How.  Pr.  52;   Robinson  v.  Wicks,  6  8  Roy  v.  Bancars,  43  Barb.  310. 

How.  Pr.  161;  Muir  v.   Schenck,   3  9  Richardson    v.     Ainsworth,     20 

Hill,   228;   Gamble  v.   Cummins,   2  How.  Pr.  521;  Robinson  v.  Wicks, 

Blackf .  235.  6  id.  161 ;  Muir  v.  Schenck,  3  Hill,  228. 


rAYME>rT.  389 

even  in  a  foreign  jurisdiction,  though  in  the  latter  an  earlier  at- 
tachment had  been  levied  for  the  same  debt.^  A  payment  as 
trustee  or  garnishee  is  good  though  the  trustee  might  have  dis- 
puted the  jurisdiction  of  the  court  ordering  such  payment.^ 

A\^here  a  debt  is  owing  to  two  persons  jointly  it  may  be  paid 
to  either.  Thus,  where  two  persons  joined  in  an  agreement  to 
sell  and  convey  land,  it  was  held  that  a  payment  to  one  of 
them  was  good  though  he  had  no  title  to  the  land.'  Payment 
of  a  debt  due  to  a  deceased  person  made  before  letters  granted, 
to  a  person  who  afterward  takes  out  letters,  is  good,  and  made 
so  by  the  subsequent  letters.* 

Pleading  and  evidence  of  payment. —  By  the  theory  of  com- 
mon law  pleading  in  the  action  of  assumpsit,  as  well  as  by  the 
provisions  of  the  modern  code,  pa3nnent,  either  full  or  partial, 
being  in  confession  and  avoidance,  must  be  pleaded.  It  cannot 
be  proved  under  the  general  issue  or  general  denial.  The  issue 
in  debt  was  upon  the  existence  of  present  indebtedness ;  and 
therefore  in  that  action  the  rule  was  different.  The  general 
issue  in  assumpsit,  however,  by  a  later  practice,  came  to  be  so 
expanded  as  to  materially  infringe  this  logical  rule ;  and  it  was 
held  to  embrace  many  defenses  which  admitted  all  the  essen- 
tial facts  stated  in  the  declaration,  and  avoided  their  effects 
by  matter  subsequent,  including  payment.*     Under  a  general 

1  Holmes  v.  Rfmson,  4  John.  Ch.  until  the  3d  clay  of  May,  1854,  and 
460;  S.  C.  20  John.  229;  McDaniel  v,  averred  that  such  work  and  service 
Hughes,  3  East,  367.  were  worth  the  sum  of   $650.     It 

2  Reed  v.  Parsons,  11  Cush.  255;  concluded  as  follows:  "That  there 
Sauntry  v.  Dunlap,  12  Wis.  364.  is  now  due  to  this  plaintiff,  over  and 

'  Waters  v.  Travis,  9  John.  450.  above  all  payments  and  offsets,  on 

■'Priest    V.   Watkins,  2  HiU,  225;  account  of  said  work,  the  sum  of 

Mather  v.  Faulkner,  7  Hill,  181.  one  hundred  and  thirty-four  dollars, 

5  An  interesting   and    instructive  wliich  said  sum  defendant  refuses  to 

discussion  of   this   subject    is   con-  pay,    wherefore    plaintiff    demands 

tained  in  the  opinion  of  Selden,  J.,  judgment  in  this  action  for  said  last 

in  McKyring  v.  Bull,  16  N.  Y.  297.  mentioned  sum  and   interest   from 

In  that  case  the  com]ilaint  alleged  the  4th  day  of  May,   1854,   besides 

that  tlie  plaintiff  entered  into  the  costs."    The  answer  consisted  sijn- 

employ  of  the  defendant  on  the  12th  ply  of  a  general  denial  of  all  the  al- 

of  May,  1852,  and  continued  in  such  legations  of  the  complaint.     Upon 

employment,  doing  labor  and  service  the  trial,  the  defendant  first  offered 

for  said  defendant  at  his  request,  evidence  of  payment  as  a  defense  to 


390 


CONVENTIONAL    LIQUIDATIONS    AND    DISCII.UIGES. 


tlie  action,  which  was  objected  to, 
and  excluded  on  the  ground  that  it 
should  have  been  pleaded.  He  then 
offered  to  prove  partial  payment,  in 
mitigation  of  damages,  and  this  also 
was  excluded  for  the  same  reason, 
and  a  verdict  was  given  for  the 
plaintiff's  claim.  On  appeal  the 
learned  judge  said:  "Although  the 
code  of  procedure  has  abrogated  the 
common  law  system  of  pleading, 
with  all  its  technical  rules,  yet,  in 
one  respect,  the  new  system  which 
it  has  introduced  bears  a  close  anal- 
ogy to  that  for  which  it  has  been 
substituted.  The  general  denial  al- 
lowed by  the  code  corresponds  very 
nearly  with  the  general  issue  in  ac- 
tions of  assumpsit  and  debt  on  sim- 
ple contract,  at  common  law.  The 
decisions  upon  the  subject,  therefore, 
in  the  English  covirts,  although  not 
obligatory  as  precedents  since  the 
changes  introduced  by  the  code,  will 
nevertheless  be  found  to  throw 
much  light  upon  the  question  pre- 
sented here. 

'  While  the  general  issue,  both  in 
assumpsit  and  debt,  was  in  theory, 
what  the  general  denial  allowed  by 
the  code  is  in  fact,  viz. ,  a  simple  trav- 
erse of  the  material  allegations  of 
the  declax-ation  or  complaint,  yet 
from  the  different  phraseology  adopt- 
ed in  tlie  two  forms  of  action,  a  very 
different  result  was  produced.  The 
declaration,  in  debt,  averred  an  ex- 
isting indebtedness,  and  this  amount 
was  traversed  by  the  plea  of  nil  debet, 
in  the  present  tense;  hence  nothing 
could  be  excluded  which  tended  to 
prove  that  there  was  no  subsisting 
debt  when  the  suit  was  commenced. 
In  assumpsit,  on  the  contrary,  both 
the  averment  in  the  declaration  and 
tlie  traverse  in  the  jilea  were  in  the 
past,  instead  of  the  present  tense, 
and  related  to  a  time  anterior  to  the 
commencement  of  the  suit.     Ui>on 


non-assumpsit,  therefore,  so  long  as 
the  rule  of  pleading  which  excludes 
all  proof  not  strictly  within  the  issue 
was  adhered  to,  no  evidence  could 
be  received  except  such  as  would 
tend  to  show  the  defendant  never 
made  the  promise.  That  this  was 
the  view  taken  of  these  pleas,  in  the 
earlier  cases,  is  clear. 

"In  an  anonymous  case,  before 
Lord  Holt  (1  Salk.  278),  it  was 
adjudged,  'that,  in  debt  for  rent, 
upon  nil  debet  pleaded,  the  statute  of 
limitations  may  be  given  in  evi- 
dence, for  the  statute  has  made  it  no 
debt  at  the  time  of  the  plea  pleaded, 
the  words  of  which  are  in  the 
present  tense.'  Again,  in  Draper  v. 
Gassop,  1  Lord  Ray.  153,  the  same 
judge  said:  '  If  the  defendant  pleads 
non-assumpsit,  he  cannot  give  in 
evidence  the  statute  of  limitations, 
because  the  assumpsit  goes  to  the 
prceter  tense;  but,  upon  nil  debet, 
the  statute  is  good  evidence,  because 
the  issue  is  joined  per  verba  de 
present  i.'' 

"  We  find,  however,  that  a  practice 
afterwards  grew  up,  and  came  at 
last  to  be  firmly  established,  of 
allowing,  under  the  plea  of  non- 
assumpsit,  evidence  of  various 
defenses,  which  admitted  all  the 
essential  facts  stated  in  the  declara- 
tion, but  avoided  their  effect  by 
matter  subsequent,  such  as  pay- 
ment, accord  and  satisfaction, 
arbitrament,  release,  etc.  The  his- 
tory and  progress  of  this  anomaly  is 
easily  traced.  The  first  departure 
from  principle  was  in  relation  to  the 
general  issue  in  actions  of  indebita- 
tus assumpsit.  In  these  actions,  the 
promise  alleged  being  a  mere  legal 
implication,  arising  upon  the  facts 
stated,  a  traverse  of  the  promise  was 
of  course  equivalent  to  a  traverse  of 
the  allegations  upon  which  it  is 
j)redicated.     Those  allegations  were 


PAYMENT. 


391 


regarded  as,  in  substance,  the  same 
as  in  an  action  of  debt  upon  simple 
contract;  and  hence  the  courts  con- 
cluded that  a  plea  which  put  them 
in  issue  should  have  the  same  effect 
as  the  plea  of  nil  debet.  That  this 
was  the  reasoning  originally  resorted 
to  is  plain  from  some  of  the  older 
cases  on  the  subject.  In  Beckford 
V.  Clark,  1  Sid.  236,  which  was  an 
action  for  assumpsit  brought  upon  a 
special  promise  to  secure  goods  from 
perils,  those  of  the  sea  excepted,  the 
court  of  king's  bench  held  that  an 
assumpsit  in  fact,  upon  non- 
assumpsit  pleaded,  a  release  could 
not  be  given  in  evidence  as  a  de- 
fense; but  in  assumpsit  in  law  it 
might.  So,  in  the  case  of  Fits  v. 
Freestone,  1  Mod.  210,  it  was  held 
that,  '  In  an  action  grounded  upon  a 
promise  in  law,  payment  before  the 
action  brought  is  allowed  to  be 
given  in  evidence  upon  non-assump- 
sit; but  when  the  action  is  grounded 
upon  a  special  promise,  their  pay- 
ment or  any  other  legal  discharge 
must  be  pleaded.' 

"  But,  notwithstanding  the  distinc- 
tion adverted  to  in  these  cases,  the 
admission  of  the  evidence,  even  in 
actions  of  indebitatus  assumpsit, 
was  a  plain  departure  from  the 
issue  upon  non-assumpsit,  which 
was,  in  terms,  that  the  defendant 
had  not  promised;  a  departure,  how- 
ever, supposed  to  be  justified  as  a 
sacrifice  of  form  to  substance.  But 
the  court,  having  already  sacrificed 
substance  to  form,  by  allowing  an 
action  of  debt  to  be  converted  into 
assumpsit  by  the  addition  of  a  mere 
fictitious  promise,  had  imposed  upon 
themselves  the  necessity  of  adhering 
to  this  form.  By  disregarding  it,  a 
manifest  incongruity  in  pleading 
was  produced.  Tested  by  the 
language  of  the  record,  there  was 
no  difference  in  the  issue  formed  by 


the  plea  of  non-assumpsit,  whether 
the  j)romise  was  express  or  implied. 
Tlie  courts,  therefore,  lost  sight, 
after  a  time,  of  the  distinction  upon 
which  special  defenses  were  origi- 
nally admitted  in  actions  of  indebita- 
tus assumpsit  alone,  and,  looking 
only  at  the  record,  took  another 
stride,  and  admitted  e\adence  of 
payment,  release,  arbitrament,  etc., 
under  non-assumpsit,  without  re- 
gard to  the  nature  of  the  promise. 

"  To  justify  this  new  theory  was 
necessary,  and  we  find  it  broaclied 
by  an  early  writer,  Gilb.  C.  P.  63.  It 
was  that  the  gist  of  the  action  of 
assumi^sit  was  the  fraud  or  deceit 
practiced  by  the  defendant  in  not 
performing  his  promise;  and  that 
this  was  put  in  issue  by  the  plea  of 
non-assumpsit.  Hence,  any  evi- 
dence showing  that  there  was  no 
existing  obligation,  at  the  com- 
mencement of  the  suit,  and,  conse- 
quently, no  fraud  w^hich  was 
injurious  to  the  plaintiff,  would 
support  the  plea.  The  same  rea- 
soning is  adopted  by  a  later  writer 
upon  pleading,  Lawes  on  PI.  520, 
521.  It  is,  however,  manifestly 
false  and  illogical.  Fraud  or  deceit 
never  constituted  the  gist  of  the 
action.  On  the  contrary,  it  has  ever 
been  held  that  fraud  need  not  be 
alleged,  and,  if  alleged,  need  not  be 
proved.  All  the  other  theories,  in- 
vented to  account  for  the  anomaly, 
were  equally  fallacious. 

' '  These  errors  proved,  in  their 
consequences,  subversive  of  some  of 
the  main  objects  of  pleading.  They 
led  to  surprises  upon  the  trial,  or  to 
an  unnecessary  extent  of  prepara- 
tion. The  courts,  however,  found  it 
impossible  to  retrace  their  steps,  or 
to  remedy  this  and  other  defects  in 
the  system  of  pleading,  without 
authority  from  parliament.  This 
authority  was  at  length  conferred 


393 


CONVEXTIOK'AL    LIQUIDATIONS    AND   DISCHARGES. 


by  the  act  of  3d  and  4th  of  William 
IV,  ch.  42,  §  1,  and  the  judges  in 
Hilary  term,  thereafter,  adopted  a 
series  of  rules,  one  of  which  was  to 
correct  the  errors  which  have  been 
adverted  to.  3  Cromp.  &  Mees.  10. 
The  first  rule  adopted,  under  the 
head  of  assumpsit,  provided  in  sub- 
stance that  the  plea  of  non-assump- 
oit  should  operate,  where  the  prom- 
ise was  express,  as  a  denial  of  the 
promise,  and  where  it  was  implied, 
of  the  matters  of  fact  upon  which 
the  promise  was  founded. 

"The  object  of  this  rule  was  to 
restore  pleading  in  assumpsit  to  its 
original  logical  simplicity.  It  was 
©bviously  intended  as  a  mere  correc- 
tion of  previous  judicial  errors.  It 
interprets  the  plea  of  non-assumpsit 
strictly  according  to  its  terms,  and 
thus  plainly  indicates  that  the  courts 
had  erred  in  departing  from  those 
terras.  That  this  was  the  view  of 
the  jvidges,  is  shown  by  the  differ- 
ent course  taken  in  regard  to  the 
plea  of  nil  debet.  As  this  plea,  con- 
strued according  to  its  terms,  in- 
cluded every  possible  defense  within 
the  issue  which  it  formed,  the  judges 
did  not  attempt  to  change  the  im- 
port of  those  terms,  but  abrogated 
the  plea.  Rule  two,  under  the  head 
of  '  Covenant  and  Debt,'  provides 
that  '  The  plea  of  nil  debet  shall  not 
be  allowed  in  any  action;'  and  rule 
three  substitutes  the  plea  of  nan- 
quam  indebitatus  in  its  place.  Thus 
the  whole  practice  which  had  con- 
tinued for  centuries,  of  receiving 
evidence  of  payment,  and  other 
Bl^ecial  defenses  under  the  plea  of 
nil  debet  and  non-assumpsit,  was 
swept  away. 

"  Tliere  are  several  inferences  to 
be  drawn  fi-om  this  brief  review, 
which  liave  a  direct  bearing  upon 
our  new  and  unformed  system  of 
pleading  in  this  state.     The  first  is, 


that  no  argument  in  favor  of  allow- 
ing payments,  or  any  other  matter, 
in  confession  and  avoidance,  to  be 
given  in  evidence  under  a  general 
denial,  can  be  deduced  from  the  for- 
mer practice  in  that  respect,  as  this 
practice  has  been  abandoned  in  Eng- 
land, not  onl7  as  productive  of 
serious  inconvenience,  but  as  a 
violation  of  all  sound  rules  of  inter- 
pretation. 

"A  second  inference  is  that,  in 
regard  to  pleading,  it  is  indispensable 
to  adhere  to  strict  logical  precision 
in  the  interpretation  of  language. 
The  anomaly  which  has  been  re- 
ferred to  was  wholly  produced  by 
the  slight  deviation  from  such  pre- 
cision in  the  action  of  indebitatus 
assumpsit  which  has  been  i^ointed 
out. 

"  But  the  most  important  infer- 
ence to  be  deduced  from  the  histori- 
cal sketch  just  given  consists  in  an 
admonition  to  adhere  rigidly  to  that 
rule  of  i^leading  w^hich  permits  a 
ti'averse  of  facts  only,  and  not  of 
legal  conclusions;  and  this  brings  us 
to  the  pivot  ujjon  which  the  point 
under  consideration  must  necessarily 
turn.  The  counsel  for  the  defend- 
ant insists  that,  as  the  answer  con- 
troverts every  allegation  of  the  com- 
plaint, it  puts  in  issue  the  allegation 
with  wiiicli  it  concludes,  viz.,  that 
there  was  due  to  the  plaintiff  at  the 
commencement  of  the  suit,  over 
and  above  all  payments,  etc.,  the 
sum  of  $134.  But  this  allegation  is 
a  mere  legal  conclusion  from  the 
facts  previously  stated.  Its  nature 
is  not  changed  by  tlie  addition  of 
the  words  '  over  and  above  all  pay- 
ments.' No  new  fact  is  thereby  al- 
leged. The  plaintiff  voluntarily 
limits  his  demand  to  a  sum  less  than 
that  to  which,  under  the  facts 
averred,  he  would  be  entitled. 

"Were  courts  to  allow  allegations 


PAYMENT. 


of  t'lis  sort  to  be  traversed,  they 
would  fall  into  the  same  ditticulty 
which  existed  in  i-egard  to  the  plea 
of  nil  debet,  and  which  led  the 
judges  in  England  to  abolish  that 
plea.  It  would  be  impossible  under 
such  a  rule,  in  a  great  variety  of 
cases,  to  exclude  any  defense  what- 
ever, if  offered  under  an  answer 
containing  a  general  denial.  In 
England,  as  we  have  seen,  after  cen- 
turies of  experience,  it  has  been 
found  most  conducive  to  justice  to 
require  the  i^artics  virtually  to  ap- 
prise each  other  of  the  precise 
grounds  upon  which  they  intend  to 
rely;  and  the  system  of  pleading 
prescribed  by  the  code  appears  to 
have  been  conceived  in  the  same 
spirit.  It  was  evidently  designed  to 
require  of  parties,  in  all  cases,  a 
plain  and  distinct  statement  of  the 
facts  which  they  intend  to  prove; 
and  any  rule  which  would  enable 
defendants  in  a  large  class  of  cases 
to  evade  this  requirement,  would  be 
inconsistent  with  this  design.  .  .  . 
"  The  next  question  is,  whether 
evidence  of  payment,  either  in 
whole  or  in  part,  is  admissible  in 
mitigation  of  damages.  As  the 
code  contains  no  express  rule  on  the 
subject  of  mitigation,  except  in  a 
single  class  of  actions,  this  question 
cannot  properly  be  determined  with- 
out a  recuri-ence  to  the  principles  of 
the  common  law.  By  these  pi'inci- 
ples,  defendants  in  actions  sounding 
in  damages  were  permitted  to  give  in 
evidence  in  mitigation,  facts  not  only 
having  a  tendency  to  reduce  the 
amount  of  the  plaintiff's  claim,  but 
in  many  cases  facts  showing  that 
the  plaintiff  had  in  truth  no  claim 
whatever.  It  was  not  necessarily 
an  objection  to  matter  offered  in 
mitigation,  that  if  properly  pleaded 
it  woiild  have  constituted  a  complete 
defense.     Thus  in  Smithers  v.  Harri- 


son (I  Lord  Raym.  727),  the  truth  of 
the  charge  was  received  in  mitiga- 
tion in  an  action  of  slander,  althougli 
not  pleaded.  Again,  in  the  case  of 
Abbot  V.  Chairman  (3  Lev.  8),  which 
was  an  action  of  assumpsit,  the  de- 
fendant having  given  in  evidence  a 
release,  Lord  Holt  said  that  he  would 
have  pleaded  exoneravit,  but  that 
the  evidence  was  admissible  in  miti- 
gation of  damages.  So,  too,  in  the 
modern  case  of  NichoUs  v.  Williams 
(2  Mees.  &  W.  758),  which  was  as- 
sumpsit for  use  and  occupation,  the 
defendant,  having  pleaded  payment 
to  part  of  the  demand  and  non- 
assumpsit  to  the  residue,  was  per- 
mitted upon  the  trial  to  prove  pay- 
ment in  full;  but  it  was  held  that 
the  evidence  could  go  only  in  miti- 
gation, and  that  the  plaintiff  was 
entitled  to  judgment  for  nominal 
damages. 

"It  is  obvious  that  this  practice 
was  open  to  serious  objections.  It 
enabled  defendants  to  avail  them- 
selves of  their  defenses  for  aU  sub- 
stantial purposes,  without  giving 
any  notice  to  the  plaintiff.  Its  un- 
just operation  in  the  action  of  slan- 
der was  observed  at  an  early  day, 
and  an  attempt  was  made,  in  the 
case  of  Underwood  v.  Parks  (2  Str. 
1200),  to  correct  the  evil,  so  far  as 
that  action  was  concerned.  But  in 
regard  to  payment,  release,  etc.,  so 
long  as  they  %vere  received  in  evi- 
dence under  the  general  issue  in  bar, 
no  objection  could  be  made  to  allow- 
ing them  in  mitigation.  As  soon, 
however,  as  this  practice  was  abro- 
gated by  the  rules  of  Hilary  term, 
4th  William  IV,  the  question  as  to 
the  admissibility  of  payment  in 
mitigation  at  once  arose.  In  Led- 
iard  v.  Bencher  (7  Car.  &  P.  1),  Lord 
Denman  admitted  evidence  of  part 
payment  under  the  general  issue  on 
the  ground  that  the  rule  of  Hilary 


394 


CONVENTIOJSTiiL    LIQUIDATIONS   AITO   DISCHAEGES. 


term  meant  *a  complete  payment, 
which  is  an  answer  to  the  action, 
and  not  a  partial  payment,  which 
only  goes  to  the  amount  of  the  dam- 
ages;' and  in  Shirley  v.  Jacobs  (7 
Car.  &  P.  3),  the  court  of  common 
pleas  held  that  payment  in  full 
might  be  received  in  mitigation. 
Tindall,  C.  J.,  says:  'I  take  the 
meaning  of  the  rule  to  be  this,  tJiat 
'payment'  is  used  to  denote  that 
which  is  intended  as  an  answer  to 
the  action.  In  the  present  case,  the 
evidence  was  not  offered  with  that 
view;  it  was  only  offered  in  reduc- 
tion of  the  damages.' 

"These  decisions  soon  led  to  the 
adoption  of  the  rule  of  Trinity  term, 
1st  Vict.,  by  which  it  is  provided 
that,  'Payment  shall  not  in  any 
case  be  allowed  to  be  given  in  evi- 
dence in  reduction  of  damages  or 
debt,  but  shall  be  pleaded  in  bar.' 
4  Mees.  &  W.  4.  A  question  may 
arise  whether  by  the  word  '  pay- 
ment,' as  used  in  this  rule,  payment 
in  full  only  is  meant,  or  whether  it 
includes  partial  paj^ment  also.  The 
latter,  however,  must,  I  apprehend, 
be  its  true  construction.  It  would 
be  found  as  impossible  to  disci'imi- 
nate  between  partial  payment  and 
payment  in  full,  when  offered  in 
mitigation,  as  it  was  between  proof 
of  the  trutli  of  the  charges  and  evi- 
dence tending  to  prove  it  tnie,  in  an 
action  of  slander,  after  the  rule 
adopted  in  Underwood  v.  Parks,  su- 
pra. Payments  may  be  made  at 
different  times  and  in  different  smns, 
the  evidence  in  regard  to  some  of 
which  may  be  conclusive,  and  as  to 
others  doubtful;  so  that  in  many 
cases  it  would  not  be  known  whether 
the  proof  woiild  establish  complete 
or  only  partial  payments  without 
first  taking  the  verdict  of  the  jury. 
The  rule  of  Trinity  term  (1st  Vict.), 
therefore,  must  be  construed  to  ex- 


clude evidence  not  only  of  complete 
but  of  partial  payment,  in  mitiga- 
tion, without  plea.  Such  a  rule  does 
not  lead  to  the  embarrassment  which 
followed  the  rule  of  Underwood  v. 
Parks.  That  rule,  in  effect,  exclud- 
ed all  evidence  in  mitigation,  unless 
pleaded,  and  there  was  no  way  in 
which  it  could  be  pleaded.  In  re- 
gard to  payment,  there  is  no  such 
difficulty,  as  that  may  be  pleaded  to 
a  part  as  well  as  the  whole  of  a  de- 
mand. It  is  not  essential  to  the 
validity  of  a  plea  that  it  should  an- 
swer tlie  whole  of  a  declaration  or 
complaint,  or  of  any  single  count. 
It  is  sufficient  if  it  is  an  answer  to  so 
much  as  it  professes  to  answer.  1 
Saund.  299a,  note  b;  Bums  v.  Hunt, 
11  East,  451;  Nicholls  v  WiUiams,  3 
Mees.  &  W.  758. 

"It  has,  however,  been  supposed 
that  a  defense  could  not  be  inter- 
posed to  a  part  of  a  single  count  ex- 
cept where  such  count  was  capable 
of  a  definite  division  into  distinct 
and  independent  parts.  But  some  of 
the  modern  English  cases,  and  espe- 
cially the  case  of  Henry  v.  Earl,  8 
Mees.  &  W.,  would  seem  to  show 
that  it  is  not  now  so  regarded  in 
England,  at  least  so  far  as  the  plea 
of  payment  is  concerned;  and  that 
that  plea  may  be  interposed  in  an 
action  of  debt,  to  any  portion  of  an 
entire  demand.  This  consequence, 
indeed,  would  seem  necessarily  to 
foUow  from  the  new  rules  of  4th 
William  IV  and  1st  Victoria,  even 
if  it  was  otherwise  befoi-e.  The 
matter  is  now  placed,  therefore,  in 
the  English  courts,  upon  the  footing 
of  perfect  justice.  If  the  demand 
for  which  an  action  is  brought  has 
once  existed,  and  the  defendant  re- 
lies upon  its  having  been  reduced 
by  payments,  he  must  appear  and 
plead.  It  is  to  be  determined 
whether  we  have  kept  up  with  those 


PAYMENT. 


395 


courts  with    our    measures    of    re- 
form. 

"The  rules  of  Hilary  term  (4th 
William    IV),   and  the    system   of 
pleading  prescribed    by    the    code, 
have,  in  one  respect,  a  common  ob- 
ject, viz. :  to  prevent  parties  from 
surprising  each  other,  by  proof  of 
which  their  pleadings  give  no  no- 
tice.    Those  rules,  according  to  the 
construction  put  upon  them  by  the 
courts,  were  found  inadequate,  so 
far  as  proving  payment  in  mitiga- 
tion "was  concerned,  to  accomplish 
the  end  in  view;    and    it    became 
necessary  to  adopt  the  rules  of  Trin- 
ity term  (1st  Vict.)  to  remedy  the 
defect.     If    the    provisions    of    the 
code  are  to  receive,  in  this  respect, 
a  construction  similar  to  that  given 
to  the  rules  of  Hilaiy  term,  then  an 
additional  provision  will  be  required 
to  place  our  practice  upon  the  same 
basis    of    justice    and    convenience 
with  that  in  England.     But  is  such 
a  construction  necessary?    Section 
149  of  the  code  provides  that  the 
answer  of  the  defendant  must  con- 
tain:   First.   A  general  or  specific 
denial  of  the  material  allegations  of 
the  complaint;  and  second.  A  state- 
ment of  any  new  matter  constitut- 
ing a  defense  or  counterclaim.     The 
language  here  used  is  imperative; 
'must  contain.'     It  is  not  left  op- 
tional with  a  defendant  whether  he 
wiU  plead  new  matter  or  not;  but 
aU  such  matter,  if  it  constitute  a 
'defense  or  counterclaim,'  must  be 
pleaded;    and  this  is  in  entire  ac- 
cordance with  the  general  princi- 
ples of  pleading. 

"The  word  defense,  as  here  used, 
must  include  partial  as  weU  as  com- 
plete defenses;  otherwise  it  would 
no  longer  be  possible  to  plead  pay- 
ment in  part  of  the  plaintiff's  de- 
mand, except  in  connection  with  a 
denial  of  the  residue;  since  section 


153  provides  that  '  the  plaintiff  may, 
in  all  cases,  demur  to  an  answer 
containing  new  matter,  when,  upon 
its  face,  it  does  not  constitute  a 
counterclaim  or  a  defense.''  Such  a 
restriction  would  be  not  only  con- 
trary to  the  general  spirit  of  the 
code  in  regard  to  pleading,  but 
would  obviously  conflict  with  sec- 
tion 244,  subdivision  5,  which  pro- 
vides that  '  where  the  answer  of 
the  defendant  expressly,  or  by  not 
denying,  admits  part  of  the  plaint- 
iffs claim  to  be  just,  the  court,  on 
motion,  may  order  such  defendant 
to  satisfy  that  part  of  the  claim,'  etc. 
The  words  '  expressly  or  by  not  de- 
nying' were,  it  is  true,  inserted  by 
way  of  amendment,  since  the  issue 
in  this  case  was  joined;  but  they  do 
not  change  the  meaning  of  the  sen- 
tence. 

"The  question  to  be  determined, 
then,  is  whether  these  provisions 
are  limited  to  cases  where  the  de- 
fendant seeks  to  avail  hunself  of 
new  matter  strictly  as  a  defense, 
either  in  fuU  or  pro  tanto,  or 
whether  they  extend  to  the  use  of 
such  matter  in  mitigation.  Were 
there  nothing  in  the  code  to  indi- 
cate the  intention  of  the  legislature 
on  this  subject,  we  might  feel  con- 
strained to  foUow  the  construction 
put  by  the  English  courts  upon  the 
rules  of  Hilary  term;  although  it  is 
evident,  from  the  subsequent  adop- 
tion of  the  rule  of  Trinity  term 
(1st  Vict.),  that  this  construction 
did  not  accomplish  all  that  was 
intended.  But  section  246  provides 
that  in  all  actions  founded  upon  con- 
tract, brought  for  the  recovery  of 
money  only,  in  which  the  complaint 
IS  sworn  to,  if  the  defendant  faUs  to 
answer,  the  plaintiff  is  entitled  ab- 
solutely to  judgment  for  the  amount 
mentioned  in  the  summons,  without 
any  assessment  of   damages.     It  is 


39G 


CONVENTIONAL   LIQUmATIONS    AND   DISCHARGES. 


allegation  of  payment,  the  defendant  may  give  in  evidence  any 
facts  which  in  law  amount  to  payment ;  the  allegation  does  not 
import  payment  exclusively  in  cash.^  An  allegation  of  the  place 
of  maldng  payment  is  surplusage,  and  will  not  prejudice.'^  It 
has  been  held  in  Kentucky  not  necessary  for  a  jury  to  notice 
credits  indorsed  on  a  note,  when  sworn  on  an  inquiry  of  dam- 
ages, or  indeed  on  the  trial  of  an  issue,  unless  under  the  issue  of 
payment;  but  under  the  practice  in  that  state,  whenever  a  note 
on  which  an  action  is  brought  is  filed,  the  courts  of  original  ju- 
risdiction notice  it,  so  far  as  to  cause  the  clerk  to  note  on  the 
record  all  credits  indorsed  thereon,  as  credits  on  the  judgment. 


plain  that  in  this  class  of  actions, 
defendants  who  have  paid  part  only 
of    the    plaintiff's    demand,    must 
appear  and  plead  such  part  payment, 
or  they  will  lose  the  benefit  of  it 
altogether.     The  provisions  of  sec- 
tion 385  afford  no  adequate  remedy 
in  such  cases,  because  the  offer  to 
allow  judgnlent  for  a  part  does  not 
relieve    the    defendant    from    the 
necessity  of  controverting  the  resi- 
due by  answer.     Section  246  could 
never  have  been  adopted,  therefore, 
without  an  intention,  on  the  part  of 
the    legislature,    that     section    149 
should  be  so  construed  as  to  require 
defendants,  at  least  in  this  class  of 
actions,  to  set  up  part  payment  by 
answer;  and  it  is  difficult  to  suppose 
that  they  intended  tlie  section  to  re- 
ceive one  construction  in  one  class 
of    actions  and  a  different  one  in 
anotlier.     My  conclusion,  therefore, 
is,  that  section  149  should  be  so  con- 
strued as  to  require  the  defendants, 
in  all  cases,  to  plead  any  new  matter 
constituting  either  an  entire  or  par- 
tial defense;    and  to  prohibit  them 
from  giving  such  matter  in  evidence 
upon   the  assessment  of    damages, 
when  not  set  up  in  tlie  answer.    Not 
only  payment,  therefore,  in  whole  or 
in  part,  but  release,  accord  and  satis- 
faction,    arbitrament,    etc.,    which 
may  still,  for  aught  I  see,  be  made 


available  in  England  in  mitigation 
of  damages,  without  plea,  must  here 
be  jjleaded.  In  this  respect,  our  new 
system  of  pleadings  under  the  Code 
is  more  symmetrical  than  that  pi'e- 
scribed  by  the  recent  rules  adopted 
by  the  English  judges."  Skipwith  v. 
Morton,  3  Call,  234.  See  Edson  v. 
Dcllage,  8  How.  Pr.  273.  But  see 
Frisch  v.  Caler,  21  Cal.  71;  Davanay 
V.  Eggenhoff,  43  Cal.  397.  In  Ken- 
tucky it  is  considered  to  be  settled, 
that  a  partial  payment  on  or  before 
the  day  on  which  the  debt  is  due, 
maj^  be  pleaded;  and  full  payment 
after  the  day,  is  pleadable  by  statute; 
but  the  courts  there  have  n(>t  gone 
so  far  as  to  sanction  a  plea  of  partial 
payment  after  the  day;  but  have 
decided  that  it  cannot  be  pleaded. 
Gearhart  v.  Olmstead,  7  Dana,  445; 
Mc Waters  v.  Draper,  5  T.  B.  Mon. 
497;  6  J.  J.  Marsh.  340:  1  Dana,  375. 
Nor  is  either  partial  or  full  payment 
after  the  day  provable  under  the 
general  issue.  Hamilton  v.  Coons,  5 
Dana,  317. 

1  Farmers'  and  Citizens'  Bank  v. 
Shenuan,  33  N.  Y.  69;  Whellington 
V.  Roberts,  4  T.  B.  Mon.  173.  See 
Day  V.  Clarke,  Adm'r,  1  A.  K. 
Marsh.  521,  and  Sherwood  v,  Camp- 
bell, Hil.  T.  6  Wm.  4. 

2  Brown  v.  Gooden,  16  Ind.  444. 


PAYMENT.  39T 

and  this  after  a  writ  of  inquiry  or  verdict,  when  the  jury  has  not 
noticed  them.^  Payment  of  a  debt  and  costs,  while  suit  is  pend- 
ing for  its  recovery,  extinguishes  the  claim.^ 

EvroENCE  OF  PAYiNiENT. —  Possession  of  the  evidence  of  debt  is 
presumptive  evidence  of  authority  to  receive  payment.^  But  as 
evidence  of  agency,  the  presumption  ceases  on  the  death  of  the 
principal.*  So  possession  of  the  evidence  of  debt  by  the  maker 
is  prima  facie  evidence  of  payment.  Thus  the  possession  of  a 
bank  check  by  the  bank  on  which  it  is  drawn,  is  such  evidence 
that  the  bank  has  paid  it.^  But  possession  of  a  note  by  the 
maker,  is  sucli  evidence  only  after  maturity ;  possession  before 
maturity  is  not.^  Nor  is  the  presumption  of  payment  from  such 
possession  rebutted  by  proof  of  the  mere  fact  that  the  payee  or 
former  holder  is  dead.'^  The  force  of  the  presumption  varies 
with  the  circumstances  of  the  case  in  which  it  is  sought  to  be 
applied;  and  the  amount  of  evidence  necessary  to  overcome  it 
is,  in  general,  for  the  jury.^ 

The  receipt  of  rent,  for  a  specified  period,  is  presumptive  evi- 
dence of  the  payment  of  previous  rent.^  So  of  taxes.^"  So  where 
A,  in  consideration  of  a  bill  of  goods,  sold  to  him  by  B,  agreed 
to  pay  the  amount  of  the  biU  in  discharge  of  certain  notes  signed 
by  B,  and  indorsed  by  A,  it  is  hke  evidence  of  the  payment  of  a 
previous  indebtedness  of  B  to  A." 

If  a  debtor  is  placed  in  an  official  or  fiduciary  relation  in  which 
it  becomes  his  duty  to  receive  the  money,  the  law  will,  in  gen- 
eral, presume  payment  of  the  debt  —  but  the  presumption  may 
be  rebutted.^2  Payment  received  on  Sunday,  though  received  in 
violation  of  law  for  the  observance  of  that  day,  if  afterwards 
retained,  is  good.^* 

1  Phelps  V.  Taylor,  4  T.  B.  Mon.  Gee  v.  Prouty,  9  Met.  547.  See  Heald 
170.  V.  Davis,  11  Cush.  319. 

2  Root  V.  Post,  29  Vt.  488.  ^Larimore  v.  Wells,  29  Ohio  St.  13. 
3Wmiams  v.  Walker,  2  Sandf.  Ch.         8  id. 

325;    Megary  v.    Funtes,   5    Sandf.  9  Brewer  v.  Knapp,  1  Pick.  337. 

376.  1"  Attleborough  v.  Middleborough, 

4  Id.  10  Pick.  878. 

5  Wilson  V.  Goodin,  Wright  (Ohio),  "  Colvin  v.  Carter,  4  Ohio,  354. 
219.  12  Wilson  v.  Wilson,  17  Ohio  St. 

fiErwin  v.  Shaffer,  9  Ohio  St.  43;      150.     See  ante,  p.  357. 
Baring  v.  Clark,  19  Pick.  220;  Mc-         13  Johnson  v.  WaUis,  7Gray,  164. 


398  CONVENTIONAL    LIQUIDATIONS    AND    DISCHAEGES. 

An  indorsement  of  credit  on  an  evidence  of  debt  by  the  payee, 
within  the  period  that  raises  the  legal  presumption  of  payment, 
is  evidence  for  him  for  the  purpose  of  repelling  that  presump- 
tion.^ But  for  that  purpose  it  has  reference  to  the  time  when 
such  payment  purports  to  have  been  made.^ 

Section  3.  i 

APPLICATION  OP  PAYMENTS. 

General  rule  —  By  the  party  paying  —  By  the  creditor —  Appropriation  "by 
the  court  —  Is  made  by  the  court  on  equitable  principles —  When  pay- 
ments to  be  applied  pro  rata  —  Application  to  the  oldest  debt  or  item  of 
indebtedness — To  debt  bearing  interest,  and  first  to  interest — To 
most  precarious  debt. 

The  general  rule  on  this  subject  is  that  a  debtor  paying 
money  to  his  creditor,  to  whom  he  owes  several  debts,  may 
appropriate  it  to  which  he  pleases.  In  the  absence  of  any 
appropriation  by  the  debtor,  the  creditor  has  a  right  to  make 
the  application.  If  both  omit  to  make  any  appropriation,  the 
law  will  apply  it  according  to  the  justice  and  equity  of  the  case.' 

iDabney'sEx'rv.  Dabney'sAdm'r,  kins,  30  Ohio  St.  502;  McDaniels  v. 

2  Rob.  (Va.)  620.  Barnes,    5     Bush,     183;     Parks     v. 

2  Hays  V.  Morse,  8  Vt.  316.  Ingram,  22  N.  H.  283;  Bosley  v.  Por- 

3AUeu  V.    Culver,   3    Denio,    284;  ter,   4    J.   J.    Marsh.    621;    Reed  v. 

Nat.  Bank  of  N.  v.  Bigler,  83  N.  Y.  Boardman,   20  Pick.   441;   Shaw  v. 

51;  Smith  v.  Severance,  1  McCord,  Picton,   4    B.    &    C.    715;    Scott    v. 

308;  Witherell  v.  Joy,  40  Me.   325;  Fisher,  4  T.  B.  Mon.  387;  Bayley  v. 

Thayer    v.   Denton,    4    Mich.    192;  Wincoop,  5  Gilm.  449;  Nutall's  Adm. 

Stone  V.  Seymour,  15  AVend.  19;  S.  v.  Brannin's  Ex'r,  5  Bush,  11;  Hall 

C.  8  id.  403;  Pattison  v.  HuU,  9  Cow.  v.  Marston,  17  Mass.  575;  Goddard 

747;  Van  Rensselaer  v.  Roberts,   5  v.  Cox,  2  Str.  1194;  Peters  v.  Ander- 

Denio,     470;     Patty     v.    Milne,     16  son,    5    Taunt.    596;    Bosanquet    v. 

Wend.   557;  S.   C.  22  id.  558;  Sey-  Wray,     6    Taunt.    597;     Brook    v. 

mour  V.  Marvin  11  Barb.  80;  Davis  Enderby,  2  B.  &  B.  70;  Bodenham 

V.  Fargo,  Clarke  (N.  Y.),  470;   Hall  v.  Purchas,  2  B.  &  A.  39;  Brady's 

V.  Constant,  2  Hall,   185;  Baker  v.  Adm'r  v.  Hill,  1  Mo.  315;  Sprinkle  v. 

Stackpole,   9    Cow.    420;    Webb    v.  Martin,  72  N.   Car.  92;   Howard  v. 

Dickinson,    11  Wend.  62;   Maun  v.  McCall,  31  Gratt.  205;  Dent  v.  The 

Marsh,  2  Cai.  99;  Trotter  v.  Grant,  2  State  Bank,  12  Ala.  275;  Wooten  v. 

Wend.    413;    Godfrey    v.    Warner,  Buchanan,  49  Miss.  386;  Hamilton  v. 

Hill    &    D.    Supp.    32;    Walther  v.  Benburg,  Mar.  &  Hayw.  L.  &  Eq. 

Wetmore,  1  E.  D.  Smith,  7;  Parker  586;  James  v.  Malone,  1  Bailey,  334; 

V.    Green,   3  Met.    144;  Trescott  v.  Mills  v.  Kellogg,  7  Minn.  377;  Babe 

King,  6  N.  Y.  147;  Stewart  v.  Hop-  v.  Stickney,  36  Ala.  492;  Dennis  v. 


APPLICATION    OF   PAYMENTS. 


399 


By  debtor. —  The  right  of  the  debtor  who  makes  a  vohmtary 
payment  is  absohite  to  direct  how  it  shall  be  applied,  if  he  sig- 
nify his  election  at  the  time  of  making  the  payment.^  The 
debtor  will  not  lose  the  right  to  direct  the  application  of  his 
payment,  unless  he  has  an  opportunity  to  exercise  his  right  to 
appropriate  it,  and  neglects  to  do  so.^  The  rule  is  the  same  in 
respect  to  a  partial  payment,  if  the  creditor  accept  it.^ 

The  direction  of  the  debtor  may  be  inferred  from  circum- 
stances, and  if  his  intention  can  thus  be  shown,  it  is  of  the  same 
force  as  though  there  had  been  an  express  direction.*  The  in- 
tention to  appropriate  a  payment  to  a  particular  debt  may  be 


McLaiiren,  31  Miss.  G06;  Gaston  v. 
Barney,  10  Ohio  St.  506;  Jones  v. 
Smith,  22  Mich.  360;  Waterman  v. 
Younger,  49  Mo.  413;  Stowell  v. 
Barber,  20  Me.  457;  Irwin  v.  Paulett, 
1  Kan.  418;  Pearl  v.  Clark,  3  Pa.  St. 
350;  Moreliead  v.  The  North- West 
Branch  Bank,  3  W.  &  S.  550:  Self- 
ridge  V.  Northamjjton  Baiik,  8  W.  & 
S.  320;  Selleck  v.  Sugar  Hollow  T. 
Co.  13  Conn.  459;  Whitmore  v.  Mur- 
dock.  3  Woodb.  &  M.  390;  Dalles  v. 
De  Forest,  19  Conn.  190;  Bank  of  U. 
S.  V  McAlister,  9  Pa.  St.  475;  Sonder 
V.  Schechterly,  91  Pa.  St.  83;  Clark 
V.  Scott,  45  Cal.  86;  Rackley  v, 
Pearce,  3  Ga.  241 ;  Hugrous  v.  Cooke, 
15  Ga.  321;  Thomas  v.  Kelsey,  30 
Barb.  268;  Hubbell  v.  Flint,  15  Gray, 
550;  Richardson  v.  Woodbury,  13 
Cush.  279;  Haynes  v.  Nice,  100 
Mass.  327;  Cardinal  v.  O'Dowd,  43 
Cal.  586;  Wendit  v.  Ross,  33  Cal. 
650;  Putnam  v.  Russell,  17  Vt.  54; 
Allen  V.  Kimball,  23  Pick.  473; 
Robson  V.  McKoin,  18  La  Ann.  544; 
Robinson  v.  Doolittle,  13  Vt.  246; 
Rosseau  v.  Call,  14  Vt.  83;  Early  v. 
Flannery,  47  Vt.  253;  Bancroft  v. 
Dumas,  21  Vt.  456;  Holmes  v.  Pratt, 
34  Ga.  558. 

1  Robinson  v.  Doolittle,  12  Vt.  246; 
Wendit  v.  Ross,  33  Cal.  650;  Gaston 
V.  Barney,  11  Ohio  St.  506;  Sclleck 


V.  Sugar  Hollow  T.  Co.  13  Conn.  453; 
Reynolds  v.  McFarlane,  1  Overt. 
488;  McDaniels  v.  Barnes,  5  Bush, 
183;  Parks  v.  Ingi-am,  23  N.  H.  283; 
Bosley  v.  Foster,  4  J.  J.  IMarsh.  621; 
Parker  v.  Green,  8  Met.  14^^!;  Man  v. 
Marsh,  3  Cai.  99;  Trotter  v.  Grant, 
3  Wend.  413;  Allen  v.  Culver,  3 
Dcnio,  284;  Van  Rensselaer  v.  Rob- 
erts, 5  Denio,  470;  Seymour  v.  Mar- 
vin, 12  Barb.  80;  Godfrey  v.  Warner, 
Hill  &  D.  Sup.  32;  Walther  v.  Wet- 
more,  1  E.  D.  Smith,  7;  Patterson  v. 
Hall,  9  Cow.  747;  Baker  v.  Stack- 
pole,  id.  420;  Webb  v,  Dickinson,  11 
Wend.  63;  Stone  v.  Seymour,  15 
Wend.  19. 

2  Jones  v.  Williams,  39  Wis.  300; 
Waller  v.  Lacy,  1  M.  &  G.  54;  3  Par, 
on  Cont.  631.  " 

3  Gaston  v.  Barney,  11  Ohio  St. 
506;  Wetherell  v.  Joy,  40  Me.  335. 

4Snellv.  Cottingham,  73  111.  134; 
Tayloe  v.  Sandiford,  7  Wheat.  13; 
Mayor,  etc.  v  Patten,  4  Cranch, 
317;  Turhune  V.  Cotton,  13  N.  J.  Eq. 
333,  313;  Howland  v.  Rench,  7 
Blackf.  336;  Mitchell  v.  Dall,  3  Har. 
&  G.  159;  Robinson  v.  Doolittle,  13 
Vt.  346;  Shaw  v.  Picton,  4  B.  &  C. 
715;  Scott  V.  Fisher,  4  T.  B.  Mon. 
387;  Keane  v.  Branden,  13  La.  Ann. 
20;  Smaller  v.  Union  Canal  Co,  37 
Pa.  St.  68. 


400  CONVENTIONAL   LIQUIDATIONS   AND   DISCHAJKGES. 

collected  from  the  nature  of  the  transaction",  and  may  be  re- 
ferred to  the  jury  as  a  question  of  fact.^  Thus,  where  two 
charges  of  unequal  amounts  exist,  one  legal  and  the  other  ille- 
gal, the  former  not  due,  and  a  payment  is  made  generally  on 
account  not  greater  than  the  illegal  claim,  it  was  held  to  have 
been  paid  upon  that  claim  although  not  specially  so  directed,^ 
If  the  debtor,  at  the  time  of  making  the  payment,  makes  an 
entry  in  his  own  book,  stating  the  payment  to  be  upon  a  par- 
ticular demand,  and  shows  the  entry  to  the  creditor,  this  is  a 
sufficient  appropriation  by  the  debtor.^ 

But  this  right  of  the  debtor  to  elect  to  which  of  several  debts 
a  payment  shall  be  applied  is  confined  to  voluntary  payments. 
It  does  not  extend  to  moneys  collected  by  legal  process/  The 
right  of  the  debtor  to  so  direct,  however,  cannot  be  defeated  by 
the  creditor  obtaining  possession  of  the  debtor's  fimds  without 
his  consent,  except  by  legal  proceedings  binding  upon  him. 
Where  a  debtor  entrusted  funds  to  an  agent  with  directions  to 
apply  them  by  way  of  compromise  in  satisfaction  of  two  de- 
mands held  against  him  by  the  same  person,  and  the  creditor 
knowing  this  fact  levied  an  attachment  on  the  money  so  con- 
fided to  the  agent,  and  also  on  the  money  of  the  agent,  and 
thereupon  the  agent,  to  regain  possession  of  his  own  money,  as- 
sented under  protest  to  the  application  of  the  debtor's  money 
to  one  of  the  debts  which  was  unsecured,  it  was  held  not  bind- 
ing upon  the  debtor,  and  he  was  allowed  when  afterwards  sued 
to  ap})ly  it  to  either,  at  his  option.^  So  where  a  surety  sends 
money  by  the  principal  to  the  creditor,  and  such  principal  so 
infdrms  the  creditor,  they  can  make  no  other  application  than 
that  directed  by  the  surety." 

Where  money  is  paid  by  the  principal  debtor,  a  surety  cannot 
interfere  to  control  the  apphcation  contrary  to  the  intention  of 

iWest  Branch  Bank  v.  Moreliead,  1.28;  Bennett  v.  Lewis,  2  Pick.  125; 

5  W.  &  S.  542;  Moreliead  v.  West  Wooten  v.  Buchanan,  49  Miss.  386; 

Branch  Bank,  3  W.  &  S.  550.  Forelander  v.  Hicks,  6  Ind.  448. 

2  Cadwell  v.  Wentworth,  14  N.  H.  » Dennis  v.    McLauren,    31   Miss. 

431;  Fraser  v.  Bunn,  8  C.  &  P.  704;  606;  Pearl  v.  Clark,  2  Pa.  St.  350. 

Dorsey  v.  Weyman,  6  Gill,  59.     See  ^Reed  v.  Boardman,  20  Pick.  441. 

McCarty  v.  Gordon,  16  Kan.  35.  See  Lansdale  v.  Graves,  Sneed  (Ky.), 

3Frazer  v.  Bunn,  8  C.  &  P.  704.  215. 

iBlackstone  Bank  v.  Hill,  10  Pick. 


APPLICATION   OF   PAYilENTS. 


iOl 


the  party  paying.^  'Nor  can  subsequent  incumbrancers  control 
the  application  of  moneys  made  by  the  parties  to  earlier  Hens.* 
But  sureties  in  official  bonds  ^vill  not  be  rendered  liable  as  for 
defalcation  by  application  of  funds  received  in  their  time  to 
cancel  prior  balances  or  defalcations.'  Nor  mU  an  intention  of 
the  principal  debtor  to  apply  a  payment  in  favor  of  a  surety  be 
presumed,  and  thus  exclude  the  right  of  the  creditor  to  make 
the  apphcation.* 

But  this  absolute  right  of  directing  the  application  of  pay- 
ments which  a  debtor  has  does  not  pass  to  his  personal  repre- 


1  Matthews  V.  Switzler,  46  Mo.  301; 
Gaston  v.  Barney,  supra;  Field  v. 
Holland,  6  Cranch,  8;  Allen  v. 
Jones,  8  Minn.  202. 

^  Richardson  v.  Washington  Bank, 
3  Met.  53G;  Mills  v.  Kellogg,  7  Minn. 
377.  But  see  Greene  v.  Tyler,  39  Pa. 
St.  361. 

3  In  U.  S.  V.  Eckford's  Ex.  1  How. 
U.  S.  2o0,  McLean,  J.,  said:  "  The 
treasuiy  officers  are  the  agents  of 
the  law.  It  regulates  their  duties, 
as  it  does  the  duties  and  rights  of 
the  collector  and  liis  sureties.  The 
officers  of  the  treasury  cannot,  by 
any  exercise  of  their  discretion,  en- 
large or  restrict  the  obUgation  of 
the  collector's  bond.  Much  less  can 
they,  by  the  mere  fact  of  keeping 
an  account  current,  in  w^hich  debits 
and  credits  are  entered  as  they  oc- 
cur, and  without  any  express  appro- 
])riation  of  payments,  affect  the 
right  of  sureties.  The  collector  is  a 
mere  agent  or  trustee  of  the  govern- 
ment. Holds  the  money  he  receives 
in  trust,  and  is  bound  to  pay  it  over 
to  the  government  as  the  law  re- 
quires. And  in  the  faithful  per- 
formance of  this  trust,  the  parties 
have  a  direct  interest,  and  their 
rights  cannot  be  disregarded.  It  is 
true,  as  argued,  if  the  collector  shall 
misapply  the  jmblic  funds,  his  sure- 
ties are  responsible.  But  that  is  not 
Vol.  1  —  26 


the  question  under  consideration. 
Tlie  collector  does  not  misapply  the 
funds  in  his  hands,  but  pays  them 
over  to  the  government,  without 
any  special  direction  as  to  their  ap- 
plication Can  the  treasury  officers 
say,  under  such  circumstances,  that 
the  funds  currently  received  and 
paid  over  shall  be  appropriated  in 
discharge  of  a  defalcation  which  oc-. 
curred  long  before  the  sureties  wei-e^ 
bound  for  the  collector,  and  by  sufh 
appropriation  hold  the  sureties 
bound  for  the  amount  ?  The  state- 
ment of  the  case  is  the  best  refuta- 
tion of  the  argument.  It  is  so  unjust 
to  the  sureties,  and  so  directly  in 
conflict  with  the  law  and  its  policy, 
that  it  requires  but  little  consider- 
ation." Jones  V.  U.  S.  7  How.  U.  S. 
681;  Brady  v.  U.  S.  1  Woodb.  &  M. 
l.oO:  Postmaster  General  v.  Norvill,. 
Gilpin,  106;  U.  S.  v.  January,  7 
Cranch,  574;  Seymour  v.  Van  Slyck, 
8  Wend.  403;  Stone  v.  Seymour,  15 
Wend.  19;  U.  S.  v.  Lann,  2  McLean, 
501. 

4  Smith's  Mer.  L.  672;  Plomer  v. 
Long,  1  Stark.  153;  Hagrous  v. 
Cooke,  15  Ga.  321;  Clark  v.  Burdett, 
2  Hall,  197;  Jones  v.  Malone,  1  Bai- 
ley, 334.  See  Landsdale  v.  Graves, 
Snecd  (Ky.),  215;  Gard  v.  Stevens, 
12  Mich.  292. 


tt02 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHAEGES. 


sentatives ;  nor  does  it  pertain  to  any  one  making  payments  in  a 
fiduciary  capacity.^ 

If  tlie  terms  of  an  express  trust  do  not  determine  the  order 
of  payments,  their  order,  it  is  believed,  must  be  determined  by 
law. 

An  agreement  between  debtor  and  creditor  for  a  particular 
application  of  moneys  expected  from  a  specific  source  will  pre- 
clude any  diversion  by  either  without  the  consent  of  the  other 
when  the  money  is  received.^  Thus,  where  money  is  realized 
by  a  creditor  from  a  collateral  security  for  a  debt,  such  money 
is  deemed  appropriated  to  tb.at  debt."  But  the  agreement  to 
control  the  debtor's  choice  must  be  such  as  to  give  the  creditor 
a  right  in  the  nature  of  a  lien  which  can  be  specifically 
enforced."* 

Where  the  debtor  has  dii^ected  the  application  of  his  pay- 
ment to  a  particular  debt,  he  has  a  right  to  treat  the  payment 
as  actually  so  appHed.  The  debt  will  be  deemed  extinguished 
to  the  extent  of  such  payment.^  The  creditor  has  no  option  to 
disregard  the  direction,^  and  no  different  application  by  him  will 


1  Putnam  v.  Russell,  17  Vt.  54; 
Barrett  v.  Lewis,  2  Pick.  128;  Cole 
V.  Ti-ull,  9  Pick.  325.  But  in  Mar- 
shall V.  Nagel,  1  Bailey,  308,  it  was 
held  that  if  a  debtor  pay  a  sum  of 
money  on  account  of  distinct  debts 
due  to  different  creditors  to  a  com- 
mon agent  of  all  the  creditors,  and 
give  no  directions  as  to  the  order  in 
which  the  money  is  to  be  applied  to 
the  debts,  the  agent  may  make  the 
application  according  to  his  discre- 
tion, and  the  debtor  will  be  bound 
by  it.  Carpenter  v.  Goin,  19  N.  H. 
479. 

'-'  Lansdale  v.  Mitchell,  14  B.  Mon. 
348;  Hughes  v.  McDougle,  17  Ind. 
399;King  of  Spain  v.  Oliver,  Pet.  C. 
C.  276;  Sproule  v.  Samuels,  4  Scam. 
135;  Stackpole  v.  Keay,  45  Me.  297; 
Gwathney  v.  McLane,  3  McLean, 
371;  White  v.  Toles,  7  Ala.  569; 
Smith  V.  Wood,  1  N.  J.  Eq.  74. 

3Marzion  v.   Pioche,   8  Cal.   522; 


Buckley  v.  GaiTett,  47  Pa.  St.  280; 
Sandford  v.  Clark,  29  Conn.  457; 
Masten  v.  Cummings,  24  Wis.  623: 
Cross  V.  Johnson,  30  Ark.  396:  Mc- 
Cune  V.  Bet,  45  Mo.  174;  Paine  v. 
Bonney,  6  Abb.  99;  Donalley  v. 
Wilson,  5  Leigh,  329;  Windsor  v. 
Kennedy,  52  Miss.  164;  Hicks  v. 
Bingham,  11  Mass.  300;  Hall 
V.  Marston,  17  Mass.  575. 

*  Stewart  v.  Hopkins,  30  Ohio  St. 
502.  See  Mollendy  v.  Austin,  69  111. 
15;  Clark  v   Scott^  45  Cal.  86. 

5Irwiu  V.  Paulett,  1  Kan.  St.  418. 

SRunyou  v.  Latham,  5  Ii'ed.  L. 
551;  Wetherell  -  Joy,  40  Me.  325: 
Scott  V.  Fisher,  4  T.  B.  Mon.  387; 
Blanton  v.  Rice,  5  T.  B.  Mon.  253; 
Rudgley  v.  Smalley,  12  Tex.  238: 
Farmers',  etc.  Bank  x.  Franklm,  1 
La.  Ann.  393;  Stewart  v.  Hopkins, 
supra;  Bank  of  Muskingum  v.  Car- 
penter, 10  Ohio  St.  1  pt.  21. 


APrLICATIOX    OF    PAYMENTS. 


403 


avail  unless  afterwards  ratified  or  acquiesced  in  by  the  debtor ; ' 
nor  will  the  direction  of  the  debtor  be  overruled  or  changed  in 
equity.^ 

After  a  debtor  has  made  apphcation  of  a  payment,  he  can- 
not himself  revoke  it,  and  apply  it  otherwise,  without  the  cred- 
itor's consent.  He  will  be  held  to  the  application  made,  though 
it  was  made  for  interest  on  a  debt  not  bearing  interest ;  Ho  a 
debt  on  which  the  statute  of  frauds  does  not  allow  an  action  to 
be  brought ;  *  to  an  illegal  claim.*  But  where  usurious  interest 
has  been  paid,  it  is  deemed  an  extortion,  and  allowed  to  be  re»- 
covered  back  or  apphed  to  the  principal  debt.^  A  different  rule 
prevails  in  Ohio.'^ 


1  Sherwood  v.  Ilaight,  26  Conn. 
432;  Jackson  v.  Bailey,  12  HI.  159; 
Forelander  v.  Hicks,  6  Ind.  448; 
Semnies  v.  Boy  kin,  27  Ga.  47;  Hall 
T.  Marsten,  17  Mass.  575;  Solomon 
V.  Dorschler,  4  Minn.  278;  Tayloe  v. 
Sandiford,  7  Wheat.  13;  Bonoffe  v. 
Woodbury,  12  Pick.  463;  Hussey  v. 
Manuf.  etc.  Bank,  10  Pick.  415; 
Bloodworth  v.  Jacobs,  2  La.  Ann. 
24;  Adams  v.  Bank  of  La.  3  La. 
Ann.  351;  Robson  v.  McKoin,  18 
La.  Ann.  544;  Ti'eadwell  v.  Moore, 
34  Me.  112;  Black  v.  Schooler.  2  Mc- 
Cord,  292;  Martin  v.  Draher,  5 
W^atts,  544;  MitcheU  v.  Ball,  2  Har. 
&  G.  15;  ]\IcDonald  v.  Pickett,  2 
Bailey,  617;  Reed  v.  Boardman,  20 
Pick.  441;  McKee  v.  Stronk,  1  Rice, 
291;*  Moorehead  v.  West  Branch 
Bank,  3  Watts  &  S.  550;  Jones  r. 
Perkins,  29  Miss.  139;  Smith  v. 
Wood,  1  N.  J.  Eq.  74;  Cardinal  v. 
O'Dowd,  43  Cal.  586. 

-Self ridge  t.  The  Northampton 
Bank,  8  W.  &  S.  320.  It  has  been 
held  that  the  debtor  cannot  impute 
a  payment  to  principal  when  inter- 
est is  due  thereon  without  first  pay- 
ing the  interest.  Johnson  v.  Rob- 
bins,  20  La.  Ann.  569.  Tliis  may  be 
doubted  if  the  creditor  receives  the 
money.    Unless  the  interest  was  due 


as  damages,  it  might  notwithstand- 
ing be  recovered.  See  post.  p.  000. 
See  Williams  v.  Hough  taling,  3 
Cow.  86.  See  also  Pindale  v.  Bank 
of  Monetta,  10  Leigh,  484. 

3  Beard  v.  City  of  Brooklyn,  31 
Barb.  142. 

•*Haynes  v.   Nice,   100  Mass.  327. 

^Tomlinson  v.  Kensella,  31  Conn. 
268;  Hubbell  v.  FUnt,  15  Gray,  550: 
Doi'sey  v.  Weyman,  6  Gill,  59: 
Richardson  v.  VYoodbuiy,  12  Cush. 
279;  Fillmore  v.  Gamble,  26  N.  J. 
Eq.  494;  Cad  well  v.  W^ent  worth,  14 
N.  H.  431.  See  Plummer  v.  Er- 
skine,  58  Me.  59;  Mueller  v.  Wie- 
bracht,  47  Mo.  468. 

6  Wood  V.  Lake.  13  Wis.  84,  and 
cases  cited;  Gill  t.  Rice,  13  Wis. 
549;  Lee  v.  Ppckham.  17  Wis.  383: 
Fay  V.  Lovejoy,  20  Wis.  403;  State 
Bank  v.  Ensminger,  7  Blackf.  105: 
Smead  v.  Green,  5  Ind.  308:  Brown- 
ing V.  Morris,  Cowp.  790;  Smith  v. 
Bromley,  2  Doug.  096,  notes  a,  b: 
Williams  v.  Headley,  8  East,  378: 
Wheaton  v.  Hibbard,  20  Jolm.  290: 
Barrows  v.  Cook,  17  Iowa,  436: 
Stanley  v.  Westrop,  16  Tex.  200: 
Parchman  v.  McKenuey,  20  MLss. 
631. 

7  See  Conant  v.  Seneca  County 
B"k,  1  Ohio  St.  298;  Shelton  v.  Gili, 


404  CONTENTION AL    LIQUIDATIONS    AND   DISCHARGES. 

By  mutual  consent  of  the  debtor  and  creditor,  where  no  other 
parties  are  interested,  the  apphcation  of  a  payment  may  be 
changed;  and  in  that  case  the  indebtedness  first  discharged 
will  be  revived  by  implication,  without  any  express  promise.^ 
If  there  are  other  parties  interested,  for  example,  a  surety,^  or 
co-debtor,^  or  a  subsequent  incumbrancer,'  their  consent  is 
essential.* 

Evidence. —  Parol  evidence  is  admissible  to  show  that  at  the 
time  a  promissory  note  was  given  for  money  lent,  an  agreement 
was  made  to  pay  a  certain  sum  as  extra  interest,  and  that  aU 
the  payments  made  were  for  the  extra  interest  and  not  upon 
the  note.^  A  copy  of  a  letter  addressed  by  a  creditor  to  his 
debtor,  contained  in  the  letter  book  of  the  former,  advising  the 
debtor  that  he  had  drawn  on  him  for  the  amount  of  a  particular 
purchase,  is  not  evidence  for  such  creditor  in  an .  action  against 
a  guarantor,  to  establish  tliat  a  payment  made  shortly  after- 
wards, by  the  debtor,  who  was  indebted  on  several  accounts, 
was  made  in  discharge  of  such  purchase ;  though  the  draft  it- 
self, or  evidence  of  its  contents,  if  lost,  accompanied  by  a  letter 
from  the  debtor  to  the  creditor,  regretting  his  inability  to  meet 
the  draft,  and  promising  speedy  payment  of  that  demand,  fol- 
lowed by  a  payment  a  few  days  after  the  date  of  such  letter,  is 
evidence  to  show  that  it  was  a  payment  made  in  discharge  of 
that  particular  claim.'^ 

The  letter  of  a  debtor,  or  of  liis  acknowledged  general  agent, 

11  Ohio,  417;  Graham  v.  Cooper,  17  tion  of    the    jjayments,    previously 

Ohio,   605;  Williamson  v.    Cole,   26  agreed  to  be  applied  to  the  mortgage 

Ohio  St.  207.  debt,  to  another  debt.     Held,   that 

1  Rouudlett  V.  Small,  25  Me.  29.  the  defendant  might  then  prove  that 

2  Brockschmidt  v,  Hagebusch,  72  the  agreement  to  change  the  appro- 
Ill.  502;  Ruble  v.  Norman, 7  Bush,  582;  priatiou  was  made  after  he  had  ap- 
Ware  v.  Otis,  8  Greenlf .  387.  plied  for  the  benefit  of  the  insolvent 

3  Thayer  v.  Denton,  4  Mich.  192;  laws,  and  therefore  invalid.  Rich- 
Miller  V.  Montgomery,  31  111.  850;  mond  Iron  Works  v.  Woodruff,  8 
Brown  v.  Brobham,  3  Ohio,  277.  Gray,  447.     See  Cremer  v.  Higgin- 

4  Chancellor  v.  Schott,  23  Pa.  St.  son,  1  Mason,  323;  Bank  of  North 
68;  Tooke  v.  Bonds,  29  Tex.  419.  America  v.  Meredith,  2  Wash.  C.  C. 

5  In  a  suit  to  foreclose  a  mortgage  47. 

which  the  defendant    alleged    had         ^  Rohan  v.  Hanson,  11  Cush.  44. 
been  paid,  the   plaintiff  proved  an         "  Mitchell  v.  Dall,  2  HaiT.  &  GiU, 
agreement  to  change  the  appropria-      159. 


APPLICATION   OF   PAYMENTS.  405 

to  his  creditor,  directing  him  to  which  of  two  debts  a  payment 
he  is  about  to  make  shall  be  applied,  is  the  best  evidence  to 
show  on  what  account  such  payment  was  received  by  the  cred- 
itor.^ Such  action  by  the  debtor,  in  an  action  against  the  guar- 
antor of  the  debtor  for  one  of  his  debts,  where  several  were 
due,  is  not  considered  as  merely  the  declaration  of  a  third  per- 
son, but  it  is  the  act  of  a  party  who  had  the  legal  right  to 
make  the  application.^ 

By  creditor. —  Where  the  debtor  omits  to  make  any  appro- 
priation at  the  time  of  payment,  the  right  to  make  the  applica- 
tion devolves  on  the  creditor.  But  the  right  which  he  may 
exercise  is  subject  to  restrictions.  In  one  respect,  however,  it  is 
less  restricted  than  that  of  the  debtor.  The  creditor  is  not  re- 
quired to  decide  at  once  on  receiving  the  money.  Within  what 
tune  he  must  exercise  the  choice  has  been  much  discussed.  The 
better  opinion  would  seem  to  be  that  he  must  make  the  applica- 
tion within  a  reasonable  time,  in  view  of  the  cu-cumstances  of 
the  particular  casej  at  the  latest,  before  any  controversy  arises, 
or  before  any  material  change  in  the  relations  of  the  parties.^ 

The  bringing  of  a  suit  may  determine  the  creditor's  election, 
as  where  he  holds  two  notes  and  an  unappropriated  payment  is 
made  large  enough  to  pay  one  of  them,  his  bringing  suit  on  one 
of  the  notes  is  an  election  to  apply  the  money  to  the  jiayment  of 
the  other.*    But  if  he  brings  separate  suits  on  them,  he  \vill  not 

1  IVIitchell  V.  Dall,  2  Harr.  &  GiU,  Oneida  Central  Bank,  34  Barb.  298, 
159.  '  it  was  held  that  a  bank  which  liolds 

2  Id.  a  note  against  one  of  its  depositors 
SEobinson  V.  DooUttle,  12  Vt.  246;      is  not  bound  to  ai^ply  his  deposits 

Mills  V.  Fawks,  5  Bing.  N.  C.  455;  immediately  when  it  becomes  due. 

Philpot  V.  Jones,  2  Ad.    &  El.   41;  If  not  made  then,  and  a  judgment  is 

Smith's  Mer.  L.  650;  Peters  v.  An-  recovered  on  the  note,  the  riglit  to 

derson,  5  Taunt.  596;  Beatty  v.  Nor-  make  such  application  is  not  thereby 

ris,  6  W.  Va.  477;  Bridenbecker  v.  waived  or  lost,  and  the  bank  may 

Lowell,  32  Barb.  9;  Haynes  v.  Waite,  afterwaixls  avail  itself  of  the  right 

liCal.  446;  Allen  v.  Culver,  3  Denio,  against  an  assignee  of  the  deposit. 

284;    Parker  v.    Green,  8  Met.  144;  See  Long  Island  Bank  v.  Towusend, 

Whitmore  v.  Murdock,  3  Woodb.  &  Hill  &  D.  Supp.  204;  The  Mayor  of 

M.  390;  United  States  v.  Kirkpatrick,  Alexandria  v.  Patten,  4  Cranch,  317. 
9  Wheat.  720;  Backhouse  v.  Pattern,         ^  Allen  v.  KimbaU,  23  Pick.  473; 

5  Pet.    160;    Hill  v.    Sutlierland,    1  Starrett  v.  Barber,  20  Me.  457;  Babe 

Wash.  (Va.)  128;  Van  Rensselaer  v.  v.    Stickney,    36   Ala.   492;  Dent  v. 

Rolxjrts,  5  Denio,  570.     In  Marsh  v.  The  State  Bank,  12  Ala.  275. 


400 


CONVEXTION^yL    LIQUIDATIONS    AISTD   CISCIIAKGES. 


be  allowed  on  the  trial  of  one  to  elect  to  appl}^  to  tlie  satisfac- 
tion of  the  other,  a  payment  previously  made  by  the  debtor,  and 
not  before  specially  applied  by  either  party.* 

A  banker  is  not  required  by  law  to  apply  a  balance  due  by 
him  on  account  current  to  his  depositor,  upon  a  liability  of  such 
customer,  on  a  note  or  bill.  And  in  a  suit  by  a  banker  against 
the  acceptor  of  a  bill,  the  fact  that  the  drawer  had  an  account 
with  the  banker,  and  that  after  protest  of  the  bill  there  were 
balances  in  favor  of  the  drawer,  would  not  be  evidence  in  favor 
of  the  acceptor,  to  show  a  payment  or  satisfaction  by  the 
drawer.^ 

If  a  debtor  owes  to  his  creditor  several  debts,  it  is  generally 
said  that  the  creditor  may  apply  a  payment  which  the  debtor 
does  not  appropriate  to  either  at  his  pleasure."  This  is  not  true 
in  an  absolute  and  unqualified  sense.  He  is  not  at  hberty  to  apply 
a  payment  to  a  disputed,*  contingent,'^  or  unliquidated  demand, 
in  preference  to  one  admitted,  absolute  or  certain,  nor  to  one  not 
due  in  lieu  of  another  past  due.^    Where  part  of  a  debt  is  barred 


1  Stone  V.  Talbot,  4  Wis.  442. 

2  Citizens'  Bank  v.  Carson,  33  Mo. 
191;  Long  Island  Bank  v.  Townsend, 
Hill  &  D.  Supp.  204;  but  see  State 
Bank  v.  Armstrong,  4  Dev.  L.  519, 
and  State  Bank  v.  Locke,  4  Dev.  529. 

3  Trotter  v.  Grant,  2  Wend.  413; 
Bobbins  v.  Lincoln,  12  Wis.  1;  Smith 
V.  Severence,  1  McCord,  308;  Peter 
V.  Anderson,  5  Taunt.  596;  Arnold  v. 
Johnson,  1  Scam.  196;  Brady's  Adm. 
V.  Hill,  1  Mo.  225;  Brewer  V.  Knapp, 
1  Pick.  337;  Holmes  v.  Pratt,  34  Ga. 
558;  Washington  Bank  v.  Prescott, 
30  Pick.  34;  Goddard  v.  Cox,  2  Str. 
1194;  Allen  v.  Kimball,  23  id.  473; 
Brook  V.  Enderly,  2  B.  &  B.  70; 
Bodenham  v.  Purchas,  3  B.  &  A.  39; 
Bosanquet  v.  Wray,  6  Taunt.  597. 

4  stone  V.  Talbot,  4  Wis.  442.  See 
Ayer  v.  Hawkins,  19  Vt.  26;  Lee  v. 
Early,  44  Md.  80;  and  see  McLendon 
V.  Frost,  57  Ga.  448. 

5  Baker  v.  Stackpole,  9  Cow.  420; 
Cremer  v.  Higginson,  1  Mason,  338; 
Whitmore  v.  Murdock,  3  Woodb.  & 


M.  390.  See  Kidder  v.  Norris,  18  N. 
H.  532;  Wright  v.  Laing,  3  B.  &  C. 
165. 

GLamprell  v.  Bellericay  Union,  3 
Exch.  283;  Baker  v.  Stackpole.9  Cow. 
420;  Earley  v.  Flannery,  47  Vt.  353; 
Niagara  Bank  v.  Rosevelt,  9  Cow. 
409;  Babe  v.  Stickney,  36  Ala.  482; 
Burks  V.  Albert,  4  J.  J.  Marsh.  99; 
Heintz  v.  Cohn;  29  lU.  308;  Bacon 
V.  Brown,  1  Bibb,  334;  Parks  v.  In- 
gram, 23  N.  H.  383;  Cloney  v.  Rich- 
ardson, 34  Mo.  370;  Smith  v.  Apple- 
gate,  1  Daly,  91.  See  Denham  Bank 
V.  Chickering,  4Pick.  314;  McDoweU 
V.  Blackstone  Canal  Co.  5  Mass.  Ill; 
Goss  Y.  Stinson,  3  Sunin.  99;  Hunter 
V.  Ousterhaudt,  11  Barb.  33;  Effinger 
V.  Henderson,  33  Miss.  449.  In  Ar- 
nold V.  Johnson,  1  Scam.  196,  it  is 
held  the  creditor  may  apply  the  pay- 
ment to  any  debt  he  sees  proper,  un- 
less there  are  circumstances  which 
would  render  the  exercise  of  such 
discretion  on  the  part  of  the  cred- 
itor unreasonable,  and  enable  him 


APPLICATION   OF    PAYMENTS. 


407 


by  the  statute  of  limitations,  and  a  part  is  collectible,  and  the 
debtor  makes  a  payment,  requiring  and  receiving  a  receipt  in 
full  of  aU  demands,  the  law  will  imply  an  application  of  the  pay- 
ment to  the  collectible  portion.^ 

But  where  a  debtor  pays  money  without  any  specific  dh^ec- 
tions,  on  account  of  several  debts,  all  of  which  are  barred  by  the 
statute  of  limitations,  the  creditor  may  apply  it  to  either  at  his 
option ;  he  may  apply  it  to  the  largest,  and  thus  revive  it  as  to 
a  balance.  But  he  is  not  at  liberty  to  apply  a  part  of  the  pay- 
ment to  each  of  the  several  demands,  and  thereby  re^ave  them 
all.^  And  it  has  been  held  that  where  a  pajmient  made  is  less 
than  either  of  several  distinct  demands,  the  creditor  having  a 
right  to  apply  it,  is  allowed  to  divide  it  and  apply  a  part  to  each 
demand.^  But  in  other  cases,  the  right  to  make  a  pro  rata 
distribution  of  the  money  upon  aU  of  several  demands,  is 
recognized.* 


to  work  injustice  to  his  debtor.  See 
Bodenbecker  v.  Lowell,  33  Barb.  9; 
Lindsey  v.  Stevens,  5  Dana,  107. 

1  Beri-ien  v.  Mayor,  etc.  4  Robt. 
538.  See  Hill  v.  Robbins,  23  Mich. 
475. 

2Ayer  v.  Hawkins,  19  Vt.  26.  See 
contra,  Jackson  v.  Burke,  1  Dill.  311. 
See  also  Armistead  v.  Brooks,  18 
Ark.  531. 

3  Wheeler  v.  House,  27  Vt.  735. 

■*  Where  money  is  paid  by  a  debtor 
to  a  creditor  who  has  several  de- 
mands against  him,  and  no  direc- 
tions are  given  how  he  shall  apply 
it,  the  creditor  may  apply  it  as  he 
pleases;  therefore,  when  he  holds 
two  bonds  of  his  debtor,  both  due, 
and  payable  with  interest,  and 
money  is  so  paid  to  him,  he  may 
apply  it  to  the  part  extinguishment 
of  both  bonds;  and  he  is  not  bound 
to  applj-  it  on  one  bond  until  it  be 
satisfied,  and  the  residue  to  the 
other.  Smith  v.  Severence,  1  McCord, 
230.  See  James  v.  Malone,  1  Bailey, 
334. 

In  Washington  Bank  v.  Prescott, 


40  x*iCK.  j39,  four  notes  were  made 
by  the  same  person,  and  indorsed  by 
the  defendant;  they  were  in  the 
hands  of  the  same  holder;  and  the 
defendant,  before  any  of  them  be- 
came due,  gave  the  holder  an  order 
for  the  payment  of  the  notes,  with- 
out expressing  any  prioi'ity,  out  of 
property  conveyed  by  the  maker  to 
assignees,  by  an  indenture  to  which 
the  indorser  was  a  party,  for  the 
payiuent  of  the  notes  in  f  uU  or  pro- 
portiouably,  which  property  jjroved 
to  be  insufiicient.  Tlie  assignees,  in 
pursuance  of  the  order,  made  a  pay- 
ment, after  all  the  notes  had  fallen 
due,  and  the  holder  apphed  the 
money  to  aU  the  notes  pro  rata,  in- 
stead of  api)lying  it  wliolly  to  those 
which  had  first  fallen  due,  and  it 
was  held  that  he  had  a  right  to 
make  such  application.  In  an  action 
on  two  of  the  notes,  it  was  held  that 
the  other  two,  with  the  indorsements 
thereon,  were  admissible  in  evi- 
dence, in  order  to  explain  the  appro- 
priation of  tlie  monej'  paid  on  the 
oi-der.     And  it  was  also  held,  that 


408  COIvVENTIOI^AL    LIQUIDATIONS    AND   DISCHAIiGES. 

It  has  been  liekl  tliat  a  creditor  may  apply  money  paid  by  the 
debtor,  without  directions,  to  a  debt  on  which  the  statute  of 
frauds  does  not  allow  an  action  to  be  maintained ; '  or  on  a  biU 
void  for  want  of  a  stamp ;  ^  or  to  one  of  two  bills  which  was 
barred  by  the  statute  of  limitations.'  The  general  rule,  how- 
ever, is  that  the  creditor  cannot  make  an  apphcation  of  moneys 
to  any  demand  for  which  he  could  sustain  no  action.^  He  is  not 
permitted  to  a]3ply  them  to  an  illegal  demand,  although  a  debtor 
may  do  so.^  A  more  precise  and  accurate  statement  of  the  rule 
in  respect  to  a  creditor's  right  to  apply  a  payment  not  appro- 
priated by  the  debtor,  is  that  the  creditor  may  appl}^  it  on  eitlier 
of  several  demands,  at  his  pleasure,  where  they  are  all  equally 
valid,  payable  absolutely,  liquidated,  due,  and  not  in  fact 
contested.^ 

A  creditor  will  not  be  allowed  to  make  such  an  application  of 
a  payment  as  the  debtor  might  reasonably  object  to,  or  such  as 
would  work  injustice  to  him.''  He  may  not  by  applying  it  to  a 
contested  claim  throw  the  burden  upon  the  debtor  of  disproving 
the  demand.^  An  apphcation  by  the  creditor  contrary  to  the 
debtor's  directions,  but  acquiesced  in  by  him,  will  be  held  binding.^ 

the  jury,  in  assessing  the  damages,  inson  v.  Allison,  36  Ala.  525;  GiU  v. 

were  not  to  regard    any  dividend  Rice,  13  Wis.  549.     See  McCarty  v. 

which  might  in  future  be  paid  on  Gordon,  16  Kan.  35;  Fay  v.  Lovejoy, 

such  order.     See  Blackstone  Bank  v.  20  Wis.  403;   Phillips  v.  Moses,  65 

Hill,    10    Pick.    128;    Blackman   v.  Me.  70.     In  Clark  v.  Mershon,  8  N. 

Leonard,  15  La.  Ann.  59;  White  v.  J.  L.  70,  it  was  held  where  a  tavern- 

TrumbuU,  3  Green,  314.  keeper  was  indebted  to  his  customer, 

iHaynes  v.  Nice,   100  Mass.  327;  the  items  of  liquor  were  to  be  con- 

Philpott  V.  Jones,  4  Nev.  &Man.  14;  sidered  as  payment  pro  tanto,  and 

S.  C.  2  Ad.  &  El.  41;  Rohan  v.  Han-  not  a  trust  or  credit,  within  the  tav- 

son,  11  Gush.  47;  Mills  v.  Fowkes,  5  ern  act  of  New  Jersey. 

Bing.  N.  C.  455;  Ramsey  v.  Warner,  6  See  Stone  v.  Talbot,  4  Wis.  442. 

97  Mass.  13.  -BonneU  v.   Wilder,   67  lU.    327; 

2  Biggs    V.    Dwight,    1    M.    &    R.  Bedenbecker  v.  Lowell,  32  Barb.  9: 

308.  Taylor  v.  Coleman,  20  Tex.  772;  Lin- 

3 Mills  V.  Fowkes,  7  Scott,  444,  5  sey  v.  Stevens,  5  Dana,  107;  Arnold 

Bing.  N.  C.  458.  v.  Johnson,    1   Scam.  196;  Ayer  v. 

4 Kidder  v.  Norris,  18  N.  H.  532;  Hawkins,   19  Vermt.  26.     See  Beau 

Wright    V.    Laing,   3  B.  &  C.    165;  v.   Brown,    54  N.    H.   395;    Gass  v. 

Bancroft  v.  Dumas,  21  Vt.  456;  Nash  Stinson,  3  Sumn.  99. 

V.  Hodgson,  6  DeG.  M.  &  G.  474.  » Stone  v.  Talbot,  supra. 

5  Rohan  v.    Hanson,  11  Cush.  44;  sPcun.  Coal  Co.  v.  Blake,  85  N.  Y. 

Green  v.  Tyler,  39  Pa.  St.  361;  Rob-  226. 


AITLICATION   OF   PAYMENTS.  409 

It  is  not  necessary  that  tlie  demands  be  all  of  the  same  grade 
or  dignity ;  part  may  be  specialties,  and  part  simple  contract 
debts ;  and  the  creditor  have  the  choice  on  which  he  \vill  apply 
a  general  payment.^ 

As  between  a  legal  and  an  equitable  demand,  it  would  seem 
that  preference  must  be  given  to  the  legal ;  and  the  creditor  is 
not  at  liberty  to  pay  a  later  equitable  claim,  instead  of  an  older 
legal  debt ;  -  and  it  is  not  certain  that  he  has  the  option  to  apply 
the  money  to  a  prior  equitable  demand,  in  preference  to  a  later 
legal  one.^  He  may  apply  a  payment  to  a  demand  not  secured, 
in  lieu  of  one  secured,  or  to  one  the  security  for  which  is  more 
precarious.'* 

The  particular  chcumstances  may  give  the  creditor  a  right 
to  infer  the  consent  of  the  debtor  to  an  application  not  other- 
wise admissible.  He  may  apply  an  unapprojiriated  payment  to 
a  contingent  hability,  to  a  debt  not  due,  to  one  barred  by  the 
statute  of  limitations,  or  even  to  an  illegal  demand,  if  he  has 
no  other.  The  payment  of  money  under  such  chcumstances 
necessarily  implies  a  consent  to  apply  it  to  the  demands  actually 
existing.^ 

Some  distinctions  have  been  made  in  respect  to  the  creditor's 
right  of  application  between  debts  which  the  debtor  paying 
owes  separatel}^  and  alone,  and  those  which  he  owes  jointly 
with  others;  and  also  between  debts  owing  to  the  person 
receiving  the  payment  alone,  and  those  to  which  he  and  others 
are  jointl}"  entitled.  It  has  been  held  that  if  one  member  of  a 
firm  make  a  payment  to  a  person  who  has  an  account  against 
him,  and  also  against  the  firm  of  which  the  person  paying  is  a 

iMeggot  V.  Wild,  1  Lord  Raym.         <  Hargroves  v.  Cooke,  15  Ga.  321; 

287;  Mayor,  etc.  V.  Patten,  4  Ci-anch,  Waterman  v.  Younger,  49  Mo.  413; 

317;   Peters  v.  Anderson,  5  Taunt.  Jenkins  v.  Beal,  70  N.  C.  440;  Sini- 

596;  Hargroves  v.  Cooke,  15  Ga.  321;  mons  v.  Cates,  56  Ga.  609;  Driver  v. 

Pierce  v.  Kiiight,  31  Vt.  701;  Penny-  Fortner,  5  Porter,  9;  Burks  v.  Albert, 

packer  v.  Umberger,  22  Pa.  St.  492;  4  J.  J.  Marsh.  97. 
Heintz  v.  Cohn,  29  111.  308;  Brazier         ^HaU  v.  Clement,  41   N.  H.  166; 

V.  Bryant,  2  Dowl.  P.  C.  477;  Chitty  Bowe  v.  Gano,  9  Hun,  6;  Tread  well 

V.  Naish,  2  Dowl.  P.  C.  511.  v.  Moore,  34  Me.  112;  Ayer  v.  Haw- 

2Goddardv.  Hodges,  IC.  &M.  33.  kins,    19  Vt.   26.      See    Rackley  v. 

3  See  Bosauquet  v.  Wray ,  6  Taunt.  Pearce,  1  Ga.  241 ;  Bancroft  v.  Dumas, 

597;  Birch  v.  Tibbatt,  2  Starkie,  74;  21  Vt.  456.    See  ante,  p.  406;  Ai-nold 

2  Pars,  on  Cont.  631.  v.  Prole,  4  M.  &  G.  860. 


410  CONVEXTIOXAL    LIQUIDATIONS    AXD    DISCHARGES. 

member,  the  creditor  must  apply  the  payment  to  the  individual 
account,  unless  he  can  show  a  consent  to  have  it  otherwise 
applied.^  The  law  will  appropriate  it  to  the  individual  debt  in 
the  absence  of  any  appHcation  by  the  parties,  if  the  money  paid 
is  not  shown  to  have  been  derived  from  the  fund  from  which 
the  joint  hability  was  to  be  met.'^  This  strict  rule  has  not  been 
uniformly  recognized.  The  creditor  has  been  allowed  a  choice, 
in  the  absence  of  directions  from  the  debtor  making  the  pay- 
ment, to  apply  it  upon  the  joint  debt.^ 

Payments  made  by  a  surviving  partner,  while  cariying  on  the 
partnership  business  for  the  joint  benefit  of  himself  and  of 
the  estate  of  the  deceased  partner,  pursuant  to  a  stipulation  in 
the  partnership  articles,  upon  an  account,  some  items  of  which 
were  contracted  before,  and  some  after  the  death  of  the  other 
partner,  must  be  applied  to  the  discharge  of  the  first  items.^ 
Where  the  debtor  making  a  general  pa3^ment  owes  a  debt  to  a 
firm,  and  also  one  to  the  member  of  it  to  whom  the  payment  is 
personally  made,  the  receiver  is  precluded  by  his  relation  of 
agent  for  the  firm  from  preferring  his  own  claim.  It  is  implied 
in  the  very  nature  of  an  agent's  or  trustee's  contract,  that  he  will 
take  the  same  care,  at  least,  of  the  property  entrusted  to  hun 
that  he  does  of  his  own.^  Therefore,  he  should  apply  the  pay- 
ment pro  rata  to  both  debts.® 

1  Johnson  v.  Boon,  2  Harr.  173;  partners  who  remained.  Held,  that 
Gass  V.  Stinson,  3  Sumn.  98;  Sneed  the  money  with  which  payment  was 
V,  Wiester,  2  A.  K.  Marsh.  277.  made  could  not  be  presumed  to  have 

2  Baker  v.  Stackpole,  9  Cow.  420;  accrued  out  of  the  funds  of  the  new 
Livermore  v.  Claridge,  33  Me.  428.  firm,  and  to  be  applied,  therefore,  to 
See  Lee  v.  Fountaine,  10  Ala.  755.  the  benefit  of  the  fund  from  which 

3  Van  Rensselaer  v.  Roberts,  5  it  had  been  taken,  that  it  could  not 
Denio,  470.  be    applied  to  the  portion    of    the 

^Stanwood  V.  Owen,  14  Gray,  195;  account  accruing    after    the  with- 

Morgan  v.  Tarbell,  28  Vt.  498.     In  drawal,    on    the    principle   that    it 

Fairchild  v.  Hooley,   10  Conn.  475,  should  be  applied  to  the  debt  for 

an  account  against  a  partnership,  which  there  was  the  least  security, 

upon  which  sundry  payments  had  because  it  did  not  appear  but  that 

been  made,  was  entire  and  unbal-  the  company  was  as  solvent  after 

anced;  before    any  payments    had  the  withdrawal  as  before;  but  that 

been  made,  one  of  the  partners,  who  the  money  so  paid  should  be  apphed 

was   a   secret   partner,    had    with-  to  the  oldest  items  of  the  account. 

drawn  from  the  concern,  and  the  *  Colby  v.  Copp,  35  N.  H.  434. 

payments  were  made  by  one  of  the  6 Id.;  Favenc  v.  Bennett,  11  East, 


AITLICATION   OF   PAYMENTS.  411 

A  creditor  cannot  apply  a  payment  made  generally  on 
account  of  existing  debts  to  a  new  debt  subsequently  con- 
tracted ;  ^  nor  to  an  instalment  of  the  same  debt  becoming  due 
subsequent  to  the  pa3"ment.2 

It  has  been  held  that  the  creditor's  application  is  not  com- 
plete and  absolute  until  the  debtor  has  been  notified  of  it.' 
When  he  has  given  such  notice  the  money  is  appropriated.^ 

If  the  holder  for  collection  of  several  notes,  OAvned  by  differ- 
ent persons  against  one  debtor,  receives  from  him  a  sum  less 
than  the  amount  of  all  the  notes,  and  the  debtor  makes  no  ap- 
plication of  the  payment,  it  is  competent  for  the  creditors  own- 
ing the  notes  to  direct  the  apphcation  to  any  of  the  notes.  In 
an  action,  after  such  payment,  upon  one  of  such  notes,  in  the 
absence  of  any  application  of  the  payment  up  to  the  time  of 
the  trial,  no  part  wiU  be  applied  to  the  note  in  suit,  if  it  appears 
that  the  plaintiff  has  received  no  part  of  the  money.^  An  at- 
torney holding  several  notes  for  collection  belonging  to  different 
persons,  and  receiving  a  payment  on  account  of  them  not  appro- 
priated by  the  debtor,  may  himself  appropriate  it.^  But  if  an 
agent  having  a  demand  himself  against  a  debtor,  and  also  act- 
ing for  a  principal  who  has  a  demand  against  the  same  debtor, 
receives  an  unappropriated  payment  from  such  debtor,  he  must 
ratabl}''  apply  it  to  both.'' 

The  right  of  appropriation  is  confined  to  the  parties ;  no  third 
person  can  insist  on  any  apphcation  which  neither  of  them  has 
made.^    Thus  the  grantee  of  the  mortgagor  cannot  insist  that 

36;  Barrett  v.    Lewis,  2  Pick.   123;  assignment,   and   recover  the    fii-st 

Scott  V.  Ray,  18  Pick.  300;  Cole  v.  debt    from    C,    the    surety    for    it. 

TiTiU,  9  id.  325.  Donally  v.  Wilson,  5  Leigh,  329. 

1  Law's  Ex'r  v.  Sutherland,  5  Gratt.  2  Seymour  v.  Sexton,  10  Watts,  255. 

357;  Baker  v.  Stackpole,  9  Cow.  430.  3  Stephenson  v.  Ingham,  2  B.  &  C. 

A  owed  a  debt  to  B,  ijayable  on  de-  65;  AUen  v.  CuUver,  3  Deuio,  284; 

mand,  for  whicli  C  was  surety.     A  Van  Rensselaer  v.  Roberts,  5  Denio, 

assigned  debts  of  otliers  to  B,  as  a  470. 

means  of  payment  in  part.     After  *Id. 

svich    assignment,    but    before    the  *  Taylor  v.  Jones,  1  Ind.  17. 

assigned    debts    were    collected,    A  6  Cai-j)enter  v.  Goin,  19  N.  H.  479. 

contracted  another  debt  to  B,  for  '^Barratt  v.   Lewis,   2  Pick.    123; 

which  tliere  was  no  security.     Held,  Cole  v.  Trull,  9  Pick.  325. 

that  B  could  not,  after  collection  of  « Harding  v.  Tifft,  75  N.  Y.  461; 

the  assigned  debts,  apply  the  same  Feldman  v.  Blier,  78  id.  29;  Coles  v. 

to  pay  the  debt  contracted  after  the  Withers,  33  Gratt.  186. 


4.12  CONVENTIONAL,   LIQUIDATIONS   AND   DISCHARGES. 

money  of  the  mortgagor,  in  the  mortgagee's  hands,  shall  be 
used  to  pay  off  the  mortgage,  unless  this  was  clearly  contem- 
plated by  the  parties,  and  the  grantee  made  his  purchase  upon 
that  understanding.^  Strangers  can  require  nothing  in  this  re- 
gard which  the  parties  have  not  required.^  Where  creditors 
claim  equities  through  their  debtors,  they  are  usually  estopped 
by  what  the  debtors  do ;  but  fraud  never  estops  creditors.  This 
doctrine  relative  to  the  application  of  payments  applies  only 
where  the  creditor  has  two  or  more  honest  claims  against  the 
debtor;  it  does  not  apply  so  as  to  conclude  creditors  whei'e 
there  is  only  one  such.  Therefore  a  subsequent  mortgagee  may 
object  to  the  application  by  the  holder  of  an  earlier  mortgage 
of  partial  payments  to  usurious  interest  for  the  purpose  of 
keeping  ahve  that  part  which  is  vahd.^  As  has  been  already 
stated,  a  surety  of  the  debtor  making  an  indefinite  pa3riiient 
cannot  interfere  with  the  election  of  the  creditor ;  nor  will  an 
intention  of  the  debtor  be  presumed  to  apply  it  in  favor  of  the 
surety  so  as  to  exclude  the  right  of  the  creditor  to  make  the 
apphcation.^ 

But  where  at  the  inception  of  the  contract  of  suretyship  a 
mode  of  pa^^ment  was  agreed  upon  and  a  particular  fund  identi- 
fied for  that  purpose,  he  may  insist  on  the  application  of  that 
fund  when  it  is  reaUzed.  Thus,  a  factor  who  has  accepted  a  bill 
drawn  by  his  principal,  as  against  an  accommodation  drawer  who 
becomes  such  on  the  faith  of  a  consignment  of  cotton  made  to 
meet  it  at  maturity,  cannot  apply  the  proceeds  of  the  consign- 
ment to  another  debt,  and  no  factor's  hen  for  such  other  debt 
will  be  permitted  to  intervene.*     When  the  party  having  a  right 

1  Gordon  v.  Hobart,  2  Story,  243;  balance  existing  against  him  before 
Backhouse  v.  Patton,  5  Pet.  160.  the  gviaranty  was  given,   and   the 

2  Spring  Garden  Association  v.  guarantor  cannot  insist  on  the  pay- 
Tradesmen's  Loan  Association,  46  ments  being  applied  in  exoneration 
Pa.  St.  493.  See  Parker  v.  Greene,  of  his  liability,  although  at  the  time 
8  IVI^t.  137.  of  his  assuming  it  the  creditors  did 

3  Green  v.  Tyler,  39  Pa.  St.  361.  not  give  him  notice  that  any  such 
See  Chester  v.  Wheelwright,  15  balance  was  then  existing.  Kirby 
Conn.  562.  v.  Marlborough,  2  M.  &  S.  18.     See 

4  Payments  made  generally  to  the  Merrimack  Co.  Bank  v.  Brown,  12 
creditors  Ofi  account  of  a  i^erson  for  N.  H.  320. 

whom  a  guaranty  is  given,  may  be  ^  Brander  v,  Phillips,  16  Pet.  121. 
applied  by  them  in  liquidation  of  a     See  Marryatts  v.  White,  2  Stark.  101. 


APPLICATIOX    OF    PAYilENTS. 


413 


to  appropriate  a  payment  has  done  so,  the  approjmation  is  final, 
and  he  cannot  change  it.^ 

Appropriation  by  the  court. —  Wliere  the  parties  have  not 
made  a  specific  appropriation  of  moneys  paid,  and  there  are 
several  debts  or  demands  for  which  the  ])arty  paying  the 
money  is  hable  to  the  party  receiving  it,  the  fundamental  rule 
or  principle  is  that  the  law  wiU  appropriate  it  according  to  the 
justice  and  equity  of  the  case.^  In  applying  this  cardinal 
principle,  various  subsidiary  rules  have  been  recognized,  in 
respect  to  which,  and  in  the  reasons  assigned  therefor,  the  de- 
cisions are  not  entirely  in  accord.  Many  cases  proceed  upon 
the  assumption  that  the  intention  of  one  or  both  of  the  parties 
is  to  be  effectuated,  or  that  the  interest  of  one  party  in  prefer- 


in  which  security  having  been  given 
by  a  surety  for  goods  to  be  supplied 
and  in  respect  of  a  pre-existing  debt, 
the  goods  were  supplied,  and  pay- 
ments made  from  time  to  time  by 
the  principal,  in  respect  of  some  of 
which  discount  was  allowed  for 
prompt  payment;  held,  that  it  must 
be  inferred  in  favor  of  the  surety, 
that  all  these  payments  were  intend- 
ed to  be  in  hquidation  of  the  latter 
account  also  ^Shaw  v.  Picton,  7  D. 
&  R.  201;  4  B.  &  O.  715);  where  the 
same  agent  had  a  bill  of  account 
with  the  grantor  of  several  annu- 
ities, for  the  payment  of  which  A 
became  surety,  and  in  consequence 
of  a  letter  written  by  an  attorney  in 
the  names  of  the  grantees,  at  the 
instance  of  the  agents,  demanding 
payment  of  the  arrears  of  the  an- 
nuities from  the  grantor  and  his 
surety,  a  sum  of  money  was  paid 
under  circumstances  from  wliich  it 
was  to  be  collected  that  the  money 
was  intended  to  be  specifically  appro- 
priated to  the  annuity  account,  and 
the  agents  applied  it  to  the  bill  ac- 
count; held,  that  this  was  a  misap- 
plication, and  that  the  money  ought 


to  be  appropriated  23^'o  rata  among 
the  annuitants  in  relief  of  the  surety. 

1  Wright  V  Wright,  73  N.  Y.  149. 

2  Field  V.  Holland,  6  Cranch,  8; 
Sonder  v.  Schecliterly,  91  Pa.  St.  83; 
Spiller  et  al.  v.  Their  Creditors,  16 
La.  Ann.  292;  Stake  v.  Seymour,  15 
Wend.  19;  Parker  v.  Green,  8  Met. 
144;  Beatty  v.  Morris,  6  W.  Va.  477; 
Robinson  v.  Doolittle,  12  Vt.  246; 
Randall  v.  Panamore,  1  Fla.  409; 
Chester  v.  Wheelwright,  15  Conn. 
563;  Calvei-t  v.  Carter,  18  Md.  73; 
Midig's  Adm'r  v.  Whiteford.  29  Md. 
178;  Haden  v.  Phillips,  31  La.  Ann. 
517;  TJpham  v.  Lafavour,  11  Met. 
174;  Seymour  v.  Van  Slyck,  8  Wend. 
403;  Hargraves  v.  Cooke,  15  Ga.  331; 
Leef  V.  Goodwin,  Taney,  460;  Calla- 
han V.  Boazman,  31  Ala.  346;  Bailey 
V.  Wynkop,  10  111.  449;  Benny  v. 
Rhodes,  18  Mo.  147;  Proctor  v. 
Marshall,  18  Tex.  63;  Oliver  v. 
Phelps,  20  N.  J.  L.  180;  McFarland 
V.  Lewis,  2  Scam.  344;  White  v. 
Trumbell,  15  N.  J.  L.  314;  Carson  v. 
Hill,  1  McIMull.  (S.  C.)  76;  Selleck  v. 
Sugar  Hollow  Turnpike  Co.  13 
Conn.  459;  Rosseau  v.  Call,  14  Vt, 
83;  Starrett  v.  Barber,  20  Me.  457. 


414 


CONVENTIONAL  L:Q:-:nAT:o:;3  and  liscuakges. 


ence  to  that  of  the  other  is  entitled  to  be  subserved.^     But  it  is 
behoved  that  there  is  no  presumption  of  intention  which  con- 


'  McDaniel  v.  Burnes,  5  Bush, 
183;  Allen  v.  Culver,  3  Denio,  284; 
Byrne  v.  Grayson,  15  La.  Ann.  457; 
Spiller  and  others  v  Their  Cred- 
itors, 16  id.  292;  Calvert  v.  Carter, 
18  Md.  73;  Pierce  v.  Sweet,  33  Pa. 
St.  151;  Poiudexter  v.  La  Roche,  7  S. 
&  M.  699;  Bussey  v.  Grant's  Adm'r 
and  Heirs,  10  Humph.  238;  Pattison 
V.  Hall,  9  Cow.  747,  Dows  v.  More- 
wood,  10  Barb.  183;  Johnson's  App. 
37  Pa.  St.  268;  Seymour  v.  Sexton, 
10  Watts,  255.  Li  Johnson's  App. 
supra,  Strong,  J.,  said:  "  The  fact  of 
actual  appropriation  to  the  earliest 
items  of  the  account  not  being 
established,  the  next  question  is 
whether  the  law  requires  that  the 
credits  should  be  thus  applied.  In 
the  absence  of  direction  by  the 
debtor,  and  of  actual  application  by 
the  creditor,  the  law  will  make  an 
equitable  application,  and,  in  mak- 
ing it,  will  regard  the  circumstances 
of  the  case.  In  the  present  case,  it 
could  make  no  difference  to  Dun- 
can whether  his  credits  were  ap- 
plied to  the  earlier  or  to  the 
later  items  of  the  account.  He  was 
equally  a  debtor  for  both,  and  both 
carried  interest.  It  is  true  that 
when  payments  are  made  upon  a 
running  account,  it  is  one  of  the 
princijiles  of  legal  application,  that 
they  shall  be  treated  as  extinguish- 
ing the  earliest  charges  in  the 
account.  But  this  is  not  a  para- 
mount princii)le.  Another  of  equal 
force  is,  tliat  the  payments  are  to 
be  applied  to  that  debt  which  is 
least  secured.  Both  these  rules  look 
to  the  interest  of  the  creditor,  it  be- 
ing presumed  that  the  debtor,  by 
neglecting  to  give  any  direction, 
consented  to  such  an  application  as 


would  be  most  beneficial  .to  the 
creditor.  But  to  apply  Duncan's 
credits  to  the  first  items  of  the 
account  ,  .  .  against  him,  and 
thus  extinguish  the  mortgage  in  the 
first  instance,  would  be  an  applica- 
tion not  beneficial  to  the  debtor,  and 
most  hurtful  to  the  creditors.  It 
would  be  paying  first  the  debt 
which  w^as  best  secured,  and 
leaving  the  later  advances  without 
the  protection  of  a  factor's  lien, 
and  without  any  security  at  all, 
as  against  judgments  entered  be- 
fore they  were  made.  It  would 
be  reversing  the  fundamental 
rule  of  api)ro]iriations."  The  equi- 
table circumstances  stated  abun- 
dantly justify  the  application  whicli 
was  made  without  the  presumption 
that  "  the  debtor,  by  neglecting  to 
give  any  direction,  consented  to 
such  an  application  as  Avould  be 
most  beneficial  to  the  creditor." 
There  would  seem  to  be  no  more 
ground  for  such  a  presumption  than 
that  the  creditor,  by  neglecting  to 
make  an  actual  application  of  the 
credits,  consented  to  such  an  applica- 
tion as  would  be  most  beneficial  to 
the  debtor. 

That  there  is  no  such  presumption 
that  the  debtor  consents  to  an  ap- 
plication most  beneficial  to  the 
creditor  is  evident  fi'om  the  cases 
that  consult  the  interest  of  the 
debtor  where  there  are  no  counter- 
vailing equities.  Thus,  in  accord- 
ance with  the  general  course  of 
authority,  the  law  appHes  a  pay- 
ment to  a. debt  bearing  interest  in 
preference  to  one  not  bearing 
interest.  Seymour  v.  Sexton,  su- 
pra. Crompton  v.  Prall,  105  Mass. 
255,    proceeds    on   the    same    prin- 


APl'I.ICATION    OF    rAVMy.XTS. 


ilo 


ti'ols  where  the  law  makes  the  application.^  If  there  is  evi- 
dence of  intention,  it  governs,  of  conrse;  but  the  application 
then  is  not  made  by  the  law,  but  by  the  party,  whose  intention 
controls.  And  when  the  interest  of  one  party  is  subserved  it  is 
not  upon  any  invidious  preference;  but  upon  some  special 
ground  of  equity  which  appeals  to  the  conscience  of  the  court 
in  his  behalf.^  Such  considerations  sometimes  require  a  ^^rc 
rata  distribution  of  the  payment  to  all  of  several  debts ;  some- 
times its  appropriation  to  one  for  being  the  oldest,  or  least 
secured,  to  relieve  the  debtor  from  some  special  hazard  or  hard- 
ship, or  to  relieve  a  surety. 

"When  payments  to  be  applied  pro  rata. —  If  an  indefinite 
payment  is  made,  and  there  are  several  debts  of  the  same  nature, 
and  all  things  are  equal,  it  is  applied  proportionally.^  Moneys 
collected  by  judicial  proceedings,  founded  on  several  claims, 
neither  party  has  an}''  discretion  to  apply,  but  the  law  wiU  apply 
such  moneys  pro  rata.  Thus,  where  a  creditor  having  several 
demands  against  his  debtor,  recovers  a  portion  of  the  entire 
amount  in  a  judicial  proceeding,  founded  on  them  all,  the  laAV 


ciple.  Dows  V.  Moreheacl,  10 
Barb.  138,  holds  that  the  law  will 
atply  payments  to  that  debt,  a  relief 
from  whicli  Avill  be  most  beneficial 
to  the  debtor;  as,  for  example,  ac- 
ceptances for  which  an  insti-miient 
in  the  shape  of  a  mortgage  or 
pledge  of  personal  property  is  given. 
Poindexter  v.  La  Roache,  7  S.  &  M. 
699,  and  Pattison  v.  Hull,  9  Cow. 
747,  are  to  the  same  effect.  But  a 
more  satisfactory  statement  of  the 
principle  is  to  be  found  in  Field 
V.  Holland,  6  Cranch,  8,  where 
Marshall.  C.  J.,  says:  "When  a 
debtor  fails  to  avail  himself  of  the 
power  he  possesses,  in  consequence 
of  which  that  power  devolves  on 
the  creditor,  it  does  not  appear  un- 
reasonalile  to  suppose  that  he  is 
content  with  the  manner  in  which 
the  creditor  will  3xercise  it.  If 
neither  party  avails  hmisdf  oL  his 


power,  in  consequence  of  wliich  it 
devolves  on  the  court,  it  would 
seem  reasonable  that  an  equitable 
application  should  be  made.  It  be- 
ing equitaljle  that  tlie  whole  debt 
should  be  paid,  it  cannot  be  inequi- 
table to  extinguish  first  those  debts 
for  whicli  the  security  is  most  pre- 
carious." See  Ainsworth  v.  Bowen, 
46  Vt.  512;  Tiaiscate  v.  King,  6N. 
Y.  127;  Worthley  v.  Emerson,  116 
Mass.  374;  A.  R.  Dunlap,  1  LoweU. 
350. 

1  Moore  v.  Gray,  22  La.  Ann.  289. 

2  Pierce  v  Knight,  31  Vt.  701; 
Smith  V.  Lloyd,  11  Leigh,  512;  2 
Greenlf.  Ev.  §  533. 

3  Spiller  V.  Tlieir  Creditors,  16  La. 
Ann.  292;  Jones  v.  Kelgore,  2  Rich. 
Eq.  63;  Baine  v.  Williams,  10  S.  & 
M.  113;  Pointer  v.  Smith,  7  Tenn. 
137. 


41G  CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 

will  apply  such  a  recovery  as  a  payment  ratably  upon  all  the 
demands ;  and  the  creditor  has  not  the  right  to  apply  it  to  the 
satisfaction  of  some  of  the  demands  in  exclusion  of  others.^ 

If  an  insolvent  debtor  assigns  for  the  benefit  of  those  creditors 
who  become  parties  to  the  assignment,  and  thereby  release  their 
clauns,  and  a  dividend  is  received  by  one  of  the  creditors,  it  must 
be  appropriated  ratably  to  all  his  claims  against  the  debtor,  as 
well  to  those  upon  which  other  parties  are  liable,  or  which  are 
otherwise  secured,  as  to  those  which  are  not  secured.^  A  gen- 
eral payment  made  by  the  principal  debtor,  pursuant  to  a  com- 
promise of  several  debts  in  one  lump,  wiU  be  applied  i^ro  rata 
to  all  the  claims  against  him,  in  an  action  against  an  indorser 
for  part.^  And  doubtless  the  same  rule  of  application  would  be 
applied  between  the  debtor  and  creditor,  where  there  has  been 
a  general  judgment,  pursuant  to  a  compromise,  founded  upon 
and  embracing  several  demands.'* 

A  pro  rata  distribution  of  a  payment  is  made  on  the  equitable 
maxun  that  equality  is  equity.  Other  considerations  may  con- 
cur, and  also  lead  to  the  same  result.  If  a  debtor  creates  a  trust 
or  security,  for  the  payment  of  several  demands,  without  prefer- 
ence, money  realized  from  that  source  is  deemed  money  appro- 
priated by  the  debtor  to  the  several  demands  so  provided  for, 
and  to  be  proportionately  distributed  thereto;  and  either  party 
may  insist  on  such  application.^  If  a  general  payment  is  made 
to  a  person  having  two  accounts  against  the  party  paying,  one 
due  to  himself  and  the  other  to  a  third  party,  for  whom  he 
was  acting  as  agent,  and  no  appropriation  of  such  payment  is 
made  by  either  party,  it  will  be  applied  ratably  to  both  ac- 

1  Cowperthwaite    v.     Sheffield,    1  Gleason,   34  Mich.   477;   Stamps   v. 
Sandf.  416;  affirmed,  3  N.  Y.  243;  Brown,  1  Miss.  526.     See  Mahone  v. 
Breidenbeck  v.  Lowell,  32  Barb.  9.  Williams,  39  Ala.  202;  Jones  v.  Kel- 
See  Thompson  v.   Hudson,  L.  R.  6  gore,  2  Rich.  Eq.  63;  Baine  v.  Will- 
Ch.    320;    Merrimack  Co.    Bank  v.  lams,  10  S.  &  M.  113. 
Brown.  12  N.  H.  320.     Where  a  fund  2  Commercial    Bank  v.    Cunning- 
is  insufficient  to  satisfy  several  judg-  ham,  24  Pick.  270. 
ments  entered  the  same  day,  they  ^  Butchers'  and  Drovers'  Bank  v. 
should  be  paid  pro  rata,  though  one  Brown,  1  N.  Y.  Leg.  Abs.  149. 
was  entered  a  few  hovirs  later  than  "Thompson  v.    Hudson,    L.    R.  6 
the  others.     Tucker  v.    Bracket,  25  Ch.  320. 
Tex.  (Supp.)  199;  Ordinary  v.  McCol-  '  Id. 
lum,  3  Strobh.  494;    Van  Aken  v. 


APPLICATION    OF    PAYMENTS. 


417 


coimts.^  So  where  a  debt  is  payable  by  instalments,  or  a  mort- 
gage is  made  to  secure  a  series  of  notes,  payable  at  different 
times,  and  a  payment  is  made  after  all  the  instahnents  or  notes 
have  become  due,  and  neither  party  makes  any  special  appropri- 
ation of  it,  according  to  the  weight  of  authority,  it  will  be  ap- 
plied by  the  court  pro  rata  to  all  the  instalments  or  notes  —  and 
this  whether  they  are  held  by  the  original  creditor,  or  a  part  have 
been  transferred;  unless  the  assignee  has  specially  acquired  a 
preference  by  the  agreement  of  transfer.^ 

When  a  debt  is  payable  in  instalments,  and  there  are  separate 
notes  or  other  distinct  evidences  of  debt,  payable  at  different 
times,  all  equally  payable,  with  or  without  interest,  and  a  gen- 
eral payment  is  made,  not  appropriated  by  either  party,  exceed- 
ing the  interest  and  principal  due  at  the  time  of  the  payment, 
it  will  be  appUed,  of  course,  first  to  pay  what  is  due  of  interest 
and  principal,  and  the  law  will  then  apply  the  residue  ratably 
on  all  and  each  of  the  instahnents  subsequently  payable,  with, 
accrued  interest  on  the  part  thus  extinguished.^ 


1  Wendit  v.  Ross,  83  Cal.  650. 

2  Cage  V.  Her,  5  Sm.  &  Mar.  410; 
Wooten  V.  Buchanan,  49  Miss.  886; 
Lonley  v.  Hays,  17  S.  &  R.  400; 
Cooper  V.  Ulman,  Walk.  Ch.  251; 
Mohlen's  App.  5  Pa.  St.  418;  Hender- 
son V.  Herrod,  10  Sm.  &  M.  631; 
English  V.  Carney,  25  Mich.  178; 
McCurdy  v.  Clark,  27  Mich.  445; 
Youraans  v.  Heartt,  34  Mich.  397; 
Betz  V.  Habner,  1  Penn.  280;  Smith 
V.  Nettles,  9  La.  Ann.  455;  Bailey  v. 
Bergen,  2  Hun,  530;  Parker  v.  Mer- 
cer, 6  How.  (Miss.)  323;  Cremer  v. 
Higginson,  1  Mason,  323;  Perry  v. 
Roberts,  2  Ch.  Cas.  84;  but  see  State 
Bank  v.  Tweedy,  8  Blackf.  447; 
Murdock  v.  Ford,  17  Ind.  52;  Stan- 
ley V.  Beatty,  4  Ind.  134;  Collum  v. 
Erwin,  4  Ala.  452;  The  Bank  of  U. 
S.  V.  Covert,  13  Oliio,  240;  Turner  v. 
Price,  31  Wis.  343. 

3  In  Righter  v.  StaU,  3  Sandford's 
Ch.  608,  a  debtor  owed  a  mortgage 
debt,  payable  in  ten  annual  instal- 

VOL.  1  —  27 


ments.  About  two-thirds  of  the  debt 
was  paid  at  a  time  when  a  small 
amount  was  due  for  interest,  and 
before  any  part  of  the  principal  had 
fallen  due.  There  was  no  direction 
given  by  the  debtor,  nor  actual  ap- 
plication of  the  payment  made  by 
the  creditor;  and  it  was  held  that  the 
law  must  make  the  application,  and 
that  after  discharging  the  interest 
due,  the  balance  must  be  applied 
ratably  in  exoneration  of  each  and 
all  of  the  instalments. 

In  Jencks  v.  Alexander,  11  Paige, 
619,  the  following  rules  are  laid 
down:  1.  Where  the  principal  is  not 
due,  but  the  interest  is  due,  the  pay- 
ment must  first  be  applied  to  pay  the 
interest  then  due;  and  the  residue 
towards  that  part  of  the  principal 
which  will  first  become  due  and  pay- 
able; so  as  to  stop  the  interest,  pro 
tanto,  from  the  time  of  such  pay- 
ment. 2.  When  neither  principal 
nor  interest  has  become  due  at  the 


418 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHAEGES. 


General  payment  applied  by  law  to  oldest  debt. —  If  no 
other  paramount  rule  of  appropriation  governs,  an  indefinite 
payment  made  to  a  person  to  whom  a  debtor  paying  the  mone\' 


time  of  the  payment,  the  amount 
paid  should  be  ajiplied  to  the  ex- 
tinguishment of  principal  and  in- 
terest ratably;  so  as  to  extinguish  a 
part  of  the  principal  and  the  interest 
which  has  accrued  on  the  part  of 
the  principal  thus  extinguished.  The 
facts  of  the  case  were,  that  August 
24,  1833,  a  mortgage  was  given  for 
$650,  payable  in  five  equal  yearly 
payments,  the  first  to  become  due  on 
the  first  of  January  following,  with 
interest  annually.  Five  hundred 
dollars  were  paid  and  indorsed  on 
the  day  the  mortgage  was  given.  On 
the  14th  of  the  following  September, 
a  further  sura  of  $3  was  paid.  On 
the  4th  of  November,  1835,  proceed- 
ings to  foreclose  were  commenced  on 
a  claim  of  $30.98  of  delinquent  in- 
terest, and  it  was  held  that  .$20.58 
was  then  due.  The  chancellor  said: 
"  I  think  the  counsel  for  the  com- 
plainants is  wrong  in  supposing  that 
nothing  had  become  due  and  paj^able 
upon  the  mortgage  at  the  time  the 
proceedings  to  foreclose  were  insti- 
tuted. It  is  true  a  sum  much  larger 
than  the  two  instalments  of  $130 
each,  and  all  interest  upon  the  resi- 
due, had  been  paid.  But  the  proper 
application  of  the  payments  was  to 
apply  them  towards  the  satisfaction 
of  the  principal  of  the  debt  at 
the  time  of  such  payments  re- 
spectively, after  deducting  from 
such  payments  the  interest  which 
had  then  accrued.  The  payment  of 
Che  $500  on  the  day  of  the  date  of 
the  mortgage,  being  applied  in  satis- 
faction of  the  three  first  instalments 
of  principal  and  $110  of  the  fourth 
instalment,  left  $20  of  the  fourth 
and  the  whole  of  the  fifth,  instal- 
ment still  due.     And  as  by  the  terms 


of  the  bond  and  mortgage,  the  in- 
terest on  the  whole  $650  was  payable 
annually,  the  mortgagee  would  have 
been  entitled  to  the  annual  interest 
on  the  $150  which  stiU  remained  due 
on  the  last  two  instalments,  if  there 
had  been  no  subsequent  payment. 
The  payment  of  $3  on  the  14th  of 
September,  1833,  must  be  applied 
towards  the  fourth  instalment  of 
principal,  after  deducting  therefrom 
the  interest  on  the  $3  from  the  24th 
of  the  preceding  August.  In  other 
words,  when  the  j^rincipal  is  not 
due,  but  interest  is  due  (a  different 
case),  the  payment  must  first  be 
applied  to  the  extinguishment  of  the 
interest  then  due  and  payable,  and 
the  residue  to  the  extinguishment  of 
that  part  of  the  principal  which  will 
first  become  due,  so  as  to  stop  in- 
terest, pro  tanto,  from  the  time  of 
such  payment.  But  when  neither 
principal  nor  interest  has  become 
due  (the  case  in  hand)  at  the  time  of 
the  payment,  such  payment,  in  the 
absence  of  any  agreement  as  to  the 
application,  is.  to  be  applied  to  the 
extinguishment  of  principal  and  in- 
terest ratably,  according  to  the  de- 
cision of  the  supreme  court  in  the 
case  of  Williams  v.  Houghtaling,  3 
Cow.  86." 

In  Williams  v.  Houghtaling,  the 
court  say:  "  When,  according  to  the 
terms  of  a  bond  payable  by  instal- 
ments, interest  cannot  be  demanded 
Tintil  the  principal  is  payable  (as  in 
this  case),  paj'ments  made  on  an  in- 
stalment not  due  and  payable  should 
be  applied  to  the  extiuguisliment  of 
principal,  and  such  proportion  of 
interest  as  has  accrued  on  the  prin- 
cipal so  extinguished.  For  instance, 
an  instalment  on  a  bond  of  $500  is 


APPLICATION   OF  PAYMENTS. 


419 


owes  several  debts,  will  be  applied  to  that  which  first  accrued.' 
This  rule  is  especially  applicable  to  items  of  debt  and  credit  in  a 


due  on  the  1st  of  January,  1825, 
with  interest  from  1st  January, 
1824;  on  the  1st  of  July,  1824,  the 
obligor  pays  $207:  the  $7  should  be 
applied  to  pay  the  six  months'  in- 
terest accraed  on  $200,  and  the  $200 
extinguishes  so  much  principal." 

There  is  dictum  in  Jencks  v.  Alex- 
ander apparently  in  conflict  with  the 
text,  and  in  conflict  with  Righter  v. 
Stall.  The  conclusion  arrived  at  is 
not  in  conflict.  If  the  payment  of 
$500  had  been  ratably  applied  to 
the  five  instalments,  they  would 
have  been  severally  reduced  to  $30, 
and  interest  on  each  annually  pay- 
able would  be  the  same,  and  due  at 
the  same  time,  as  upon  a  like  amount 
in  the  two  past  instalments.  When 
the  payment  of  $3  was  made,  no 
interest  or  principal  was  due.  It 
being  paid  on  the  mortgage  gener- 
ally, was  applicable  ratably  towards 
paying  the  entire  principal  and 
interest. 

In  Turner  v.  Pierce,  31  Wis.  342, 
there  was  a  land  contract  made 
October  22,  1863,  upon  Avhich  the 
purchase  money  was  $5,600,  payable 
in  six  annual  instalments,  payable 
August  1, 18G5,  to  1870,  with  interest 
on  the  whole  sum  unpaid,  payable 
at  the  time  each  instalment  became 
due  —  the  purchaser  having  the 
option  to  make  the  payments  on  or 
before  the  times  mentioned,  and 
then  to  pay  interest  only  to  the  time 
of  such  payment.  Before  any  of  the 
principal  became  due,  the  purchaser 
made  a  large  payment,  receipted  to 
apply  on  the  land  contract.  On  the 
5th  of  IMarch,  1866,  an  action  for 
strict  foreclosure  of  the  contract 
was  commenced,  on  the  gi'ound  the 
purchaser  was  in  default.  The  title 
had  failed  to  a  part  of   the  lands. 


and  the  court  held  that  each  instal- 
ment should  be  reduced  in  the  pro- 
portion that  the  value  of  that  part 
($1,832)  bore  to  the  whole  value;  and 
that  the  defendant  was  entitled  to 
have  the  payment  applied  to  the 
instalments  first  becoming  due  at 
such  decreased  rates,  and  that  there- 
fore nothing  was  due  when  the  suit 
was  commenced.  See  Starr  v.  Rich- 
mond. 30  111.  276. 

1  Miliken  v.  Tafts.  31  Me.  497;  Fair- 
child  V.  Holly,  10  Conn.  475;  Smith 
V.  Lloyd,  11  Leigh,  512;  Robinson's 
Adm'r  v.  Allison,  36  Ala.  526;  How- 
ard V.  McCall,  21  Gratt.  205;  Wendit 
V.  Rose,  33  Cal.  650;  Seymour  v. 
Saxton,  10  Watts,  255;  Shedel  v. 
Wilson,  27  Vt.  478;  Town  of  St.  Al- 
bans V.  Fai'ley,  46  Vt.  448;  Langdon 
V.  Bowen,  46  Vt.  512;  Upham  v. 
Lafavour,  11  Met.  174;  Dow  v.  More- 
wood,  10  Barb.  183;  Allen  v.  Culver, 
3  Denio,  284;  Webb  v.  Dickinson,  11 
Wend.  62;  Hollister  v.  Davis,  54  Pa. 
St.  508;  W^heeler  v.  Cropsey,  5  How. 
Pr.  288;  Allen  v.  Brown,  39  Iowa, 
330;  Livermore  v.  Rand,  26  N.  H. 
85;  Parks  v.  Ingram,  22  N.  H.  283; 
Thompson  v.  Philan,  22  N.  H.  339; 
Coldwell  V.  Wentwortli,  14  N.  H. 
431;  Bacon  v.  Brown,  1  Bibb,  334; 
Sprague  v.  Hazenwinkle,  53  111.  419; 
Clayton's  Case,  1  Meriv  585;  W.  S. 
V  kirkpatrick,  9  Wheat.  720;  Ber- 
nan  v.  New  York,  4  Robt.  538;  Horn 
V.  Planters'  Bank,  32  Ga.  1;  IMcKee 
V.  Commonwealth,  2  Gi'ant  Cas.  23; 
Shedd  V.  Wilson,  27  Vt.  478;  Mills  v. 
Fawkes,  5  Bing.  N.  C.  455;  Penuell 
V.  Duftield,  4  DeG.  McN.  &  G.  372; 
Harrison  v.  Johnson,  27  Ala.  445; 
Postmaster  General  v.  Furhor,  4  Ma- 
son, 332;  Hansen  v.  Rounsavill,  74 
111.  238;  Sonder  v.  Scliechterly,  91 
Pa.  St.  83.     See  Killorin  v.  Bacon, 


420  CONTElSrTIONAL    LIQUIDATIONS    AKD   DISCHAEGES. 

general  account  current.^  "When  both  parties  concur  in  the  en- 
try of  the  payments  upon  general  account,  without  specific 
application,  the  law  infers  an  intention  on  the  part  of  both,  that 
they  shaU  satisfy  the  charges  therein  in  the  order  of  their  entry ; 
and  they  wiU  be  so  applied  unless  some  controlling  equity 
requires  a  different  disposition.^ 

It  has  been  held  that  this  rule  should  apply  without  reference 
to  the  fact  that  one  item  may  be  better  secured  than  another, 
since  the  particular  parts,  being  blended  together  in  one  com- 
mon account,  have  no  separate  existence ;  the  balance  only  is 
considered  as  due;'  and  a  payment  made  on  such  account 
without  a  more  specific  appropriation,  is  treated  by  a  majority 
of  the  cases  as  applied  to  the  earliest  items,  although  for  some 
of  these  the  creditor  has  a  lien  or  other  security,  and  has  none 
for  the  others.*  Where  there  is  a  single  open  account  and  a 
general  payment  is  made  by  the  debtor  at  fuU  age,  it  is  pre- 
sumed to  be  in  satisfaction  of  the  earliest  items,  although  such 
items  accrued  during  his  minority.'^ 

The  rule  under  consideration  for  applying  an  indefinite  pay- 
ment to  the  debts  which  first  accrued,  applies  not  only  to  the 
first  items  of  an  account  but  distinct  debts  contracted  at  difi'er- 
ent  times,*  The  rule  is  not  unjust  or  prejudicial  to  a  debtor; 
it  operates,  however,  more  beneficially  to  the  creditor;  for  it 
often  saves  a  debt  from  the  bar  of  the  statute  of  limitations, 
and  closes  the  door  to  the  older  transactions  which  it  may  be 

57  Ga.  497.     In  the  case  of  mutual  v.  Gray,  23  La.  Ann.  289;  Gushing  v. 

accounts,  the  credits  on  one  side  are  Wjman,  44  Me.  121.     But  see  Pierce 

applied  to  the  extinguishment  of  the  v.  Sweet,  33  Pa.  St.  151;   Thompson 

debts  on  the  other  as  payments  in-  v.  Davenport,  1  Wash.  (Va.)  125. 
tentionally  made  thereon,  and  not  as         ^  Thurlow  v.  Gilman,  40  Me.  378. 
the  set-off  of  one  independent  debt         sparks  v.  Ingram,  22  N.  H.  283 

against  another,     Sandford  v.  Clark,  Thompson  v.  Phelan,  22  N.  H.  839 

29  Conn.  457.  McDaniel   v.  Barnes,  5   Bush,    183 

1  Crompton    v.   Pratt,    105    Mass.  Robinson's  Adm'r  v.  Allison,  36  Ala, 

255,  526;  Byrne  v.  Grayson,  15  La.  Ann 

2 Id.;  Jones  V.  XJ.  S.  7  How  U.  S.  457;    Upham  v.  Lafavour,   11   Met 

681;    Sandford   v.    Clark,    19  Conn.  174;  Langdon  v,  Bowen,  46  Vt.  512 

457;  Sondes  v.  Schechterly,  supra.  Smith  v.  Lloyd,  11  Leigh,  512;  Jones 

3  Harrison  v.  Johnson,  27  Ala.  445.  v.  U.  S.  7  How.  U.  S.  681;  McKinzie 

■tWorthley  v.  Emerson,  116  Mass.  v.  Nevins,  22  Me.  138;  Alston  v.  Con- 

374;  Trescott  v.  King,  6  N.  Y.  147;  tee,  4  Har.  &  J.  351 ;  Draffner  v.  Boon- 

A.  P.  Dunlop,  1  Lowell,  350;  Moore  ville,  8  Mo.  395. 


APPLICATION   OF    PAYMENTS.  4:21 

presumed  are  more  difficult  of  proof.  But  the  rule  applies  the 
payments  in  the  natural  and  logical  order  of  the  transactions. 
It  is  not  supported,  however,  by  reasons  so  cogent,  but  that  it 
Tvill  ^aeld  when  there  is  evidence  of  a  contrary  intention,^  or 
where  some  superior  equity  requires  a  different  application.^ 

General  payment  applied  by  law  to  a  debt  bearing  in- 
terest, AND  FIRST  TO  INTEREST. — As  bstweeu  dcbts  bearing  in- 
terest and  those  not  bearing  interest,  the  law  directs  an 
indefinite  payment  to  be  applied  to  those  bearing  interest.' 
The  reason  generally  assigned  is  that  of  relieving  the  debtor  in 
respect  to  the  debt  which  is  most  burdensome,  or  the  presumed 
choice  of  the  debtor.*  This  may  be  conceded  to  be  sufficient 
for  this  particular  appUcation,  and  some  others,  where  a  partic- 
ular one  is  specially  beneficial  to  a  debtor,  without  being  at- 
tended with  a  corresponding  loss  to  the  creditor,  which  the  law 
is  equally  solicitous  to  prevent.  Interest  due  is  first  to  be  sat- 
isfied when  a  general  pa3^ment  is  made ;  and  if  there  be  a  sur- 
plus of  the  payment,  it  is  to  be  applied  to  the  principal.  If  the 
payment  falls  short  of  the  interest,  the  balance  of  the  interest 
is  not  to  be  added  to  the  principal,  but  remains  to  be  extin- 
guished by  the  next  paym.ent,  if  sufficient.^ 

Where  a  debt  bearing  interest  remains  unpaid  until  interest 
is  due  on  the  interest,  where  it  is  permitted,  general  paj'-ments 

iCity  Discount  Co.  v.  McLean,  30  v.  Fortier,  20  lU.  509;  Hart  v.  Dor- 

L.  J.  N.  S.  883;  L.  R.  9  C.  P.   692;  man,  2  Fla.  445;  Lash  v.  Edgerton, 

Langdon  v.  Bowen,  46  Vt.  512.  13  Mnn.   210;   Hammer  v.    Nevill, 

2Upham  V.  Lafavour,  11  Met.  174,  Wright,  169;  Estebene  v.  Estebene, 

3  Hay  ward  v.  Lomax,  1  Vern.  24;  5  La.  Ann.  738;  Union  Bank  v.  Lob- 
Scott  V.  Fisher,  4  T.  B.  Mon.  387;  dell,  10  La.  Ann.  130;  Bird  v.  Lob- 
Blanton  v.  Rice,  5  T.  B.  Mon.  253;  dell,  10  La  Ann.  159;  Johnson  v. 
Bacon  v.  Bro^^^l,  1  Bibb,  334;  Scott  Robbins,  20  La.  Ann.  5G9;  Moore  v. 
V.  Cleveland,  33  ]Mis3. 447;  Busseyv.  Kiff,  78  Pa.  St.  90;  WiUiams  v. 
Grant,  10  Humph.  238.  Houghtaliug,  3  Cow.  86;  Righter  v. 

4 Id.     See  Neal  V.  Allison,  50  Miss.  StaU,    3    Saudf.    Ch.    608;    State  of 

175.  Connecticut  v.  Jackson,  1  John,  Cli. 

sFrazier  v.  Hyland,  1  Har.  &  J.  13;   People  v.    County  of  N.   Y.   5 

98;  Gwiun  v,  Whitaker,  1  Har.  &  Cow.  331;  Jencks  v.  Alexander,  11 

J.  754;  Bond  v.  Jones,  16  Miss.  368;  Paige,    619;  Starr  v.  Richmond,  30 

Spicer  v.  Hamot,  8  Watts  &  S.  17;  111.    276;    Johnson    v.    Jolmson,    5 

Peebles    v.    Gee,    1     Dev.    L.    341;  Jones'   Eq.  167;  De  Bruiil   v.    Neuf- 

Hampton  v.  Dean,  4  Tex.  455;  Hearn  fer,  1  Strobh.  426.  See  Mercer  s  Adm"r 

V.  Cutberth,  10  Tex.  216;  McFaddeu  v.  Beale,  4  Leigh,  189. 


422  CONVENTIONAL   LIQUIDATIONS   AND   DISCHAUaES. 

are  to  be  applied,  first,  to  such  interest  on  interest ;  secondly,  to 
interest  on  the  principal;  and  lastly,  to  the  principal.^  And  in 
applying  payments  on  a  sum  secured  by  a  penal  bond,  they  wiU 
be  apjilied  to  the  interest,  in  the  first  instance,  although  the 
sum  of  the  payments  exceed  the  penalty,^  A  payment  of 
usury  wiU  be  apphed  in  law  to  discharge  the  amount  legally 
due.* 

Payments  received  on  a  debt  bearing  interest  before  either  is 
due  should  be  applied  to  pay  the  principal  and  the  interest  ac- 
crued on  that  part  of  the  principal  so  extinguished.*  The  rule 
which  applies  a  general  payment  first  to  interest  due,  rather 
than  principal,  is  directly  opposite  to  that  which  applies  a  pay- 
ment on  an  interest-bearing  debt  in  preference  to  one  not  bear- 
ing interest ;  it  does  not  favor  the  debtor,  but  the  creditor ;  for 
the  law,  held  in  some  states,  allowing  interest  due  to  bear  in- 
terest, is  exceptional. 

General  payments  applied  by  law  to  the  debt  least  se- 
cured.—  If  one  debt  be  secured  and  another  not  secured,  and  a 
general  payment  is  made,  the  general  rule  is  that  the  court  will 
apply  it  to  the  debt  which  is  not  secured,  or  the  debt  for  which 
the  security  is  most  precarious.^     If,  however,  the  security  of 

1  Anketet  v.  Converse,  17  Ohio  St.  the  principal.  Otherwise,  by  loan- 
11.  ing  the  sum  thus  received,  he  would, 

-Smith  V.  Macon,   1   Hill  (S.  C),  in  effect,  compound  the  interest,  or 

Ch.  339.  have  placed  at  interest  before  its 

2  Burrows  v.  Cook,  17  Iowa,  486;  maturity,  a  larger  sum  than  his 
Parchman  v.  McKinney,  20  Miss.  original  claim.  In  other  words,  he 
631;  Stanley  v.  Westrop,  16  Tex.  would  receive  interest  on  the 
200;  Bartholomew  v.  Yow,  9  Paige,  maker's  money  as  well  as  his  own. 
165.     See  ante,  p.  403.  After    the    principal     and    interest 

4  Righter  v.  Stall,  3  Sandf .  Ch.  both  become  due,  it  would  be  other- 
608;  Jencks  v.  Alexander,  11  Paige,  wise.  The  court  below,  we  think, 
619;  Williams  v.  Houghtaling,  3  erred  in  applying  any  portion  of 
Cow.  86;  Miami  Exporting  Co.  v.  the  payment  made  before  the  ma- 
il. S.  Bank,  5  Ohio,  560.  In  Starr  turity  of  the  note,  to  the  extinguish- 
V.  Richmond,  30  111.  276,  Walker,  J.,  ment  of  interest,  but  should  have 
said:  "  It  appears  to  be  more  equi-  appropriated  the  whole  of  the  pay- 
table  and  just  that  when  the  holder  ment  to  the  principal."  McElrath 
receives  money  before  it  is  due,  on  v.  Dupuy,  3  La.  Ann.  520;  Fay  v. 
a  demand  drawing  interest,  it  Lovejoy,  20  Wis.  403. 
should  be  applied,  in  the  absence  of  ^McDaniel  v.  Barnes,  5  Bush,  183; 
an  agreement  to  the  contraiy,   to  Thomas    v.   Kelsey,   30    Barb.   267; 


APPLICATION   OF   PAYMENTS. 


423 


one  of  the  debts  is  by  a  surety,  a  general  payment  will  be  ap- 
plied to  the  debt  for  which  he  is  hable,  that  he  may  be  relieved,^ 

But  in  some  of  the  states  the  courts,  carrying  the  rule  to 
greater  length,  hold  that  the  application  will  be  made  to  the 
debt  wliich  bears  heaviest  upon  the  debtor,  and  apply  a  general 
payment  so  as  to  discharge  a  debt  for  which  a  debtor  has  given 
security,  in  preference  to  an  unsecm'ed  demand,  in  order  to 
release  the  security.^ 

There  is  a  marked  conflict  of  decision  upon  this  point  relating 
to  the  apphcation,  by  the  court,  of  indefinite  payments,  arising, 
as  before  intimated,  from  the  diverse  judicial  assumptions;  on 
the  one  hand,  that  such  payments  are  as  a  general  rule  to  be 
apphed  in  a  manner  most  beneficial  to  the  debtor,  and  on  the 
other,  that  they  are  to  be  apphed  most  beneficially  to  the  cred- 
itor.*   No  court,  however,  has  so  far  relied  upon  either  assump- 


Blanton  v.  Rice,  5  T.  B.  Mon.  253; 
Field  V.  Holland,  6  Crancli,  8;  Burks 
V.  Albert,  4  J.  J.  Marsh.  97;  Haa- 
nover  v.  Rochester,  2  J.  J.  Marsh. 
144;  Foster  V.  McGraw,  64  Penn.  464; 
Patterson  V.  Hull,  9  Cow.  747;  Dows 
V.  Morewood,  10  Barb.  183;  John- 
son's App.  37  Pa.  St.  268;  Pierce  v. 
Sweet,  33  Pa.  St.  151;  Langdon  v. 
Bowen,  46  Vt.  512;  Wilcox  v.  Fair- 
haven  Bank,  7  Allen,  270;  Hemp- 
tield  R.  R.  Co.  v.  Thornbury,  1  W, 
Va.  261;  Gaston  v.  Barney,  11  Ohio 
St.  510;  Mass  v.  Adams,  4  Ired.  Eq. 
42;  Ransom  V,  Thomas,  10  Ired.  165; 
State  V.  Thomas,  11  Ired.  251;  Jen- 
kins V.  Beal,  70  N.  C.  440;  Sprenkle 
V.  Martin,  73  N.  C.  92;  Chester  v. 
Wheelwright,  15  Conn.  562;  Bailey 
V.  Porter,  4  J.  J.  Marsli.  621;  Gordon 
V.  Hobart,  2  Story,  243;  Taylor  v. 
Talbot,  2  J.  J.  Marsh.  49;  Hillyer  v. 
Vaughan,  6  J.  J.  Marsh.  583;  Sager 
V.  Warley,  Rice  Ch.  (S.  C.)  26;  Heil- 
bron  V.  Bessell,  1  BaUey  Eq.  430; 
Gregory  v.  Forester,  1  McCord  Ch. 
318;  Smith  v.  Wood,  7  N.  J.  Eq.  74; 
Jones  V.  Kilgore,  2  Rich.  Eq.  63; 
l^aine  v.  Williams,  18  Miss.  113;  Mc- 
yuaide  v.  Stewart,  48  Pa.  St.   198; 


Smith  V.  Brooks,  49  Pa.  St.  147; 
Planters'  Bank  v.  Stockman,  1  Free- 
man's Ch.  503. 

1  Berghaus  v.  Alter,  9  Watts,  386 
Ross  V.    McLauchlan,    7    Gratt.    86 
Marryatts  v.  White,  3  Stark.    101 
Gard  v.  Stevens,  12  Mich.  292;  Brei- 
denbecker  v.  Lowell,  32  Barb.  9. 

2  Patterson  v.  Hull,  9  Cow.  747; 
Dows  V.  Morewood,  10  Barb.  183; 
Poindexter  v.  La  Roche,  7  Sm.  &  M. 
699;  Dorsey  v.  Garraway,  2  Har.  & 
J.  402;  McTavish  v.  CarroU,  1  Md. 
Ch.  160  (but  see  Gwinn  v.  Whitta- 
ker,  1  Har.  &  J.  754);  Antartic, 
Sprague,  206;  Neal  v.  Allison,  50 
Miss.  175, 

•^  So  much  has  this  assumption  of 
favoring  one  party  or  the  other  as  a 
rule  entered  into  the  judgment  of 
the  courts,  tliat  it  has  been  a  con- 
venient resort  for  determining  inci- 
dental questions.  Thus  where  it  was 
proved  that  a  payment  was  made  in 
a  certain  j^ear,  but  the  day  and 
month  could  not  be  sliown,  the  coiut 
directed  the  credit  to  be  given  as  of 
the  last  day  of  the  year,  a  day  most 
favorable  to  tlxe  creditor.  Byers  v. 
Fowler,  14  Ark.  86.     Sec  Anderson 


424:  CONVENTIONAL    LIQUIDATIONS   AND   DISCHARGES. 

tion  as  to  resolve  all  questions  by  it.  As  before  stated,  neither 
assumption,  apart  from  some  special  ground,  is  founded  in  rea- 
son or  principle.  Neither  party,  by  reason  merely  of  being 
debtor  or  creditor,  has  any  claim  to  be  preferred ;  each,  as  a 
general  rule,  has  had  an  election  to  appropriate  the  payment, 
and  each  having  waived  it,  has  an  equal  claim  to  a  just  applica- 
tion by  the  court.  The  rule  that  the  debt  which  is  least  secured 
should  be  first  paid,  where  there  are  no  special  circumstances, 
stands  on  very  slight  preponderance  of  equity.  The  most  that 
can  be  said  for  it  was  said  by  Marshall,  C.  J. :  "  It  being  equita- 
ble that  the  whole  debt  should  be  paid,  it.  cannot  be  inequitable 
to  extinguish  first  those  debts  for  which  the  security  is  most 
precarious ; "  ^  and  it  is  not  surprising  that  the  humane  consid- 
eration of  reheving  the  debtor  of  the  more  burdensome  debt 
should  determme  the  application  the  other  way.  But  the  rule 
to  pay  first  the  debt  least  secured  seems  to  be  supported  by  a 
decided  weight  of  authority. 

Tliere  is  also  considerable  contrariety  of  decision  upon  other 
points  relative  to  the  application  of  payments  by  the  court. 
The  cases  agree  that  an  indefinite  payment  is  to  be  applied  to 
the  oldest  debt,  where  no  other  rule  of  appropriation  conflicts ; 
but  it  often  occurs  that  another  rule,  and  sometimes  several,  do 
conflict.  Then  the  relative  force  of  the  conflicting  rules,  and  the 
particular  circumstances,  must  control  the  application.  That 
rule  is  often  met  by  the  rule  that  the  least  secured  debt  shall  be 
first  paid.  Both  may  be  said  to  operate  in  favor  of  the  creditor, 
but  they  do  not  always  conduce  to  the  same  application.  The 
latter  is  paramount  when  no  circumstances  exist  to  increase  the 
force  of  the  other  in  the  particular  case.  Where  the  secured  and 
unsecured  debts  are  by  mutual  consent  items  in  a  general  ac- 
count current,  and  especially  if,  by  like  consent,  the  payment 
is  also  credited  in  the  account,  the  rule  for  applying  the  credit 
to  the  oldest  items  prevails,  notwithstanding  the  partial  secu- 
rity;^ but  not  without  dissent.  Where  the  creditor's  secu- 
rity consisted  in  retaining  the  title  to  the  property  sold,  and  the 
purchase  price  of  the  articles  so  conditionally  sold  constituted 
the  earliest  items  in  the  account,  and  the  payments  were,  by  mu- 

V,    Mason,   6    Dana,    217;    Bank  of         i  Field  v,  Holland,  6  Cranch,  8. 
Portland  v.  Brown,  32  Me.  295.  2  Ante,  p.  430. 


ACCOKD    AJSTD   SATISFACTION.  425 

tual  consent,  entered  as  credits  in  the  account,  the  interest  of 
the  purchaser  to  perfect  his  title  to  the  property  was  deemed  too 
l^repondenite  against  the  interest  of  the  creditor  to  obtain  pay- 
ment of  his  unsecured,  rather  than  his  secflred  chiims ;  and  the 
concurrence  of  the  parties  in  making  the  transaction  a  matter 
of  account  e\inced  their  intention  that  the  payments  should 
satisfy  the  charges  in  the  order  of  their  entry.^ 

Sectiox  3. 

accord  and  satisfaction, 

Definition  —  Payment  of  part  of  a  debt  will  not  support  agreement  to  dis- 
charge the  whole  —  Any  other  act  or  promise  which  is  anew  consid- 
eration will  suffice  —  Composition  with  creditors  —  Compromise  — 
Agreement  must  be  executed  —  Rescission  or  exoneration  before  breach. 

DEFmITIo^\ —  A  claim  or  demand  may  be  satisfied  by  the  party 
hable,  delivering,  paying  or  doing,  and  the  claimant  accepting, 
something  different  from  that  which  was  owing  or  claimed,  if 
the  parties  so  agree.  It  is  a  substituted  payment.  When  such 
agreement  is  executed  —  carried  fullv  into  effect  —  the  orio-inal 
demand  is  canceled,  completely  satisfied,  and  extinguished.  It 
is  thus  discharged  by  what  the  law  denominates  accord  and  sat- 
isfaction. It  is  a  discharge  of  the  former  obligation  or  habihty 
by  receipt  of  a  new  consideration  mutually  agreed  on. 

iCrompton  v.  Pratt,  105  Mass.  Georgetown,  5  Pet.  518,  it  was  held 
250.  In  Pointer  v.  Smith,  7  Term,  that  the  right  of  prioiity  of  payment 
137,  A,  a  Tennessean,  as  agent,  hired  among  creditors  of  an  intestate,  de- 
out  in  Alabama,  the  slaves  of  several  pends  on  the  law  of  the  place  where 
Tennesseans,  and  afterwards  re-  the  assets  are  administered,  and  not 
ceived  in  Alabama  a  part  of  the  on  the  law  of  the  place  of  the  con- 
hire,  without  any  appropriation  at  tract,  or  of  the  domicile  of  the  de- 
the  time,  by  either  agent  receiving  ceased;  and,  therefore,  where  ad- 
or  the  debtor  paying.  Held,  that  the  ministration  was  taken  under  the 
law  of  Alabama  would  govern  as  to  laws  of  Maryland,  of  assets  there, 
the  subsequent  appropriation  of  the  where  aU  debts  are  of  equal  dignity, 
payment;  but  in  the  absence  of  any  and  the  intestate  was  domiciled  and 
proof  as  to  the  law  of  Alabama,  ap-  owed  a  bond  debt  in  Virginia, 
plicable  to  the  circumstances,  the  where  bond  debts  have  a  preference, 
debtor  could  not  make  a  subsequent  the  bond  debt  had  no  i^rior  right 
appropriation,  and  it  should  be  dis-  of  payment  out  of  the  assets  in 
tributed  ^^ro  ra^a.  Maryland. 

In  Smith  v.  The  Union  Bank  of 


42G  CONVENTIONAL    LIQUIDATIONS   AND   DISCHAEGES. 

For  the  purpose  of  supporting  such  an  agreement,  and  giving 
it  effect,  the  law  treats  all  considerations  which  have  value,  with- 
out regard  to  the  extent  of  that  value,  as  sufficient,  as  it  does  in 
aU  other  cases  of  contract ;  —  inadequacy  is  no  valid  objection ; 
a  court  will  not  consider  the  disparity,  if  there  is  any,  between 
the  value  of  the  liability  discharged,  and  the  thing  done  or 
promised,  which  forms  the  consideration,  if  the  latter  is  of  some 
value.^ 

Payment  of  part  of  a  debt  will  not  support  agreement  to 
DISCHARGE  THE  WHOLE. —  Where  there  is  an  overdue  money  de- 
mand liquidated  and  not  disputed,  and  a  part  only  of  it  is  paid, 
though  this  is  accepted  as  full  satisfaction,  there  is  only  a  part 
performance  of  the  obligation  in  kind ;  the  agreement  to  dis- 
charge the  residue  of  the  debt  not  paid  is  void  for  want  of  con- 
sideration. All  claims  for  damages,  for  torts  committed,  or  for 
contracts  broken,  are  due  in  money.  When  a  demand  therefor 
is  certain,  or  rendered  certain  by  agreement  or  adjudication, 
and  is  no  longer  disputed,  it  cannot  be  satisfied  with  any  less 
sum  of  money  than  the  precise  sum  o^ving.  If  a  part  is  paid, 
there  is  a  partial  performance  of  the  obligation  of  the  party 
liable,  and  no  more.  His  payment  is  only  a  discharge  fro 
tanto.  This  part  payment  may  have  been  induced  solely  by 
the  assurance  that  it  would  be  accepted  as  full  satisfaction,  and 
it  may  have  been  impossible  to  compel  payment ;  still,  the  party 
paying  has  done,  in  kind,  only  what  he  was  under  a  legal  obli- 
gation to  do,  in  respect  to  the  amount  paid,  and  the  corre- 
sponding amount  of  the  obligation  is  thereby  satisfied,  but  no 
more ;  therefore  the  agreement  of  the  creditor  to  discharge  the 
residue  is  in  a  legal  sense  gratuitous,  and  not  binding.- 

1  Savage  v.  Everman,  70  Pa.   St."  3  J.  J.  Marsh.  497;  Wood  v.  Roberts, 

315;  Hartman  v.  Dauner,  74  Pa.  St.  4  Stark.  417;  Boothby  v.  Sowclen,  3 

36:  Very  v.    Levy,  13  How.    U.   S.  Camp.  175;  Bradley  v,    Gregory,  2 

345;  Hardman  v.  Bellhouse,  9  M.  &  Camp.  383. 

W.  596;  Sibree  v,  Trippe,   15  M.  &  2Gurley  v.  Heleshae,  5  Gill,  217; 

"W.  22;  Booth  v.  Smith,  3  Wend.  66;  Fitzgerald    v.   Smith,   1    Ind.    310; 

Kellogg  V.  Richards,  14  Wend.   116;  Markel  v.  Spilter,  28  Ind.  488;  Stone 

Steinman  v.  Maguvis,  11  East,  390;  v.  Lewman,  28  Ind.  97;  Dederick  t. 

Lewis  V.  Jones,  4  B.  &  C,  406;  Bleim  Leman,  9  John.  33;  Johnson  v.  Bra- 

v.  Chester,  5  Day,  360;  Webster  v.  man,  5  John.  268;  Harris  v.  Wilcox, 

Wyser,  1  Stew.  184;  Davis  v.  Nooks,  2  John.  448;  Seymour  v.  Minturn,  17 


ACCOKD   AND   SATISFACTION". 


427 


The  actual  value  of  a  debt  or  demand  depends  on  the  proba- 
bility of  voluntary  payment,  or  the  possibihty  of  collection  by 
legal  process.  Where  a  debt  is  doubtful,  a  creditor  may  obtain 
a  part  of  the  nominal  amount  by  discharging  the  residue,  and 
thus  reahze  all  that  the  debt  is  actually  worth,  and  perhaps 
more.  For  this  reason,  the  rule  stated  has  been  regarded  by 
the  courts  as  only  a  technical  one ;  and  they  have  satisfied  it 
on  nice  distinctions.^ 


John.  169;  Moss  v.  Shannon,  1  Hilt. 
175;  White  v.  Jordan,  37  Me.  370; 
Latapee  v.  Pecholier,  3  Wash.  C.  C. 
180;  Warren  v.  Skinner,  20  Conn. 
559;  Eve  v.  Moseley,  3  Strobh.  203; 
Jones  V.  Ricketts,  7  Md.  108;  Camp- 
bell V.  Booth,  8  Md.  107;  Curtis  v. 
Martin,  20  lU.  575;  Donahue  v. 
Woodbury,  6  Cush.  150;  Bryant  v. 
Proctor,  14  B.  Mon.  362;  Williams 
V.  Langford,  15  B.  Mon.  566;  Conk- 
Un  V.  King,  10  Barb.  372;  S.  C.  10  N. 
Y.  440;  Keeler  v.  Salisbury,  33  N.  Y. 
648;.  Fellows  v.  Stevens,  24  Wend. 
299;  Howard  v.  Norton,  65  Barb. 
161;  Bliss  V.  Swartz,  64  Barb.  215; 
Harper  v.  Graham,  20  Ohio,  105; 
FiU  V.  McHenry,  42  Pa.  St.  41;  Pier- 
son  V.  McCahill,  21  Cal.  122;  Bunge 
V.  Koop,  5  Robt.  1;  Hammond  v. 
Christie,  5  Robt.  160;  Gaffney  v. 
Chapman,  4  Robt.  275;  Irvine  v. 
IMillbank,  56  N.  Y.  633;  Hinckley 
V.  Arey,  27  Me.  862;  Riley  v.  Ker- 
shaw, 52  Mo.  224;  Peterson  v. 
Wlieeler,  45  Mo.  369;  Reese  v.  Hall, 
26  Conn.  392;  Bailey  v.  Day,  26  Me. 
88;  Redfield  v.  Holland  P.  Ins.  Co. 
56  N.  Y.  354;  Lewis  v.  Jones,  6  D.  & 
R.  567;  4  B.  C.  513;  Gavin  v.  Annan, 
2  Cal.  494;  Ogborn  v.  Hoffman,  52 
Ind.  439;  Beardsley  v.  Davis,  52 
Barb.  159;  Keen  v.  Vaughan,  Ex'r,  48 
Pa.  St.  477;  Carrington  v.  Crocker, 
37  N.  Y.  336;  Cumber  v.  Wane,  1 
Str.  426;  Sibree  v.  Trippe,  15  M.  & 
W.  23;  Fitch  v.  Sutton,  5  East,  230; 
Pennel's  Case,  5  Rep.  117;  Lynn  v. 


Bruce,  5  H.  Bl.  317;  Thomas  v. 
Heathern,  2  B.  &  C.  477;  MitcheU, 
V.  Cragg,  10  M.  &  W.  367;  Skarfe  v. 
Jackson,  3  B.  &  C.  421;  Graves  v. 
Key,  3  B.  &  Ad.  313;  Stratteu  v.  Ras- 
taU,  2  T.  R.  366;  Churchill  v.  Bow- 
man, 39  Vt.  518;  Hardy  v.  Coe,  5 
Gill,  189;  Smith  v.  Bartholomew,  1 
Met.  276;  Arnold  v.  Park,  8  Bush,  3. 
1  Kellogg  v.  Richards,  14  Wend. 
116;  Smith  v.  Ballow,  1  R.  I.  497; 
Harper  v.  Graham,  20  Ohio,  105; 
Brooks  V.  White,  2  Met.  283;  Mc- 
Daniels  v.  Lapham,  21  Vt.  222.  See 
Meymouth  v.  Babcock,  42  Me.  44; 
Willkin  V.  Brown,  1  Rawle,  391; 
Lamb  v.  Goodwin,  10  Ired.  320;  Mc- 
Daniels  v.  Bank,  29  Vt.  222;  Mathers 
V.  Bryson,  4  Jones  L.  509.  In  Wool- 
folk  V.  McDowell,  9  Dana,  268,  a 
creditor  accepted  liis  own  note 
outstanding  in  the  hands  of  a  third 
person,  in  satisfaction  of  a  larger 
amount  against  his  debtor,  but  worth 
less  because  the  debtor  was  unable 
to  pay  it.  Judge  Marshall  said: 
"We  think  his  acceptance  is  suffi- 
cient to  establish  the  adequacy  of 
the  satisfaction.  It  cannot  be  said 
that  there  was  no  considei-ation  for 
giving  up  any  part  of  the  debt  of 
the  defendant,  because  although  the 
value  of  the  entire  consideration 
given  can  be  measured,  tliere  is  no 
measure  of  the  value  of  the  debt 
which  the  defendant  could  not 
pay." 


428 


CONYENTTONAL   LIQUIDATIONS    AND   DISCHAKGE8. 


Any  othek  act  ok  pkomise  which  is  a  new  consideration  will 
SUFFICE. —  If  there  be  any  benefit,  or  even  a  legal  possibility  of 
benefit,  to  the  creditor  thrown  in,  the  additional  weight  will 
turn  the  scale,  and  render  the  consideration  sufficient  to  support 
the  agreement.^  Payment  at  a  different  place,^  or  before  the 
original  debt  is  due,^  is  sufficient.  So,  if,  instead  of  offering 
payment  of  a  less  sum,  the  debtor  procure  a  third  person  to 
become  security,  either  by  engaging  his  personal  credit  or 
pledging  his  property  for  the  payment  of  a  smaller  sum ;  *  or,  if 
the  debtor  alone  gives  negotiable  paper  for  a  smaller  sum  to 
satisfy  a  larger  debt  not  in  negotiable  form ;  ^  or  if  one  of  several 
joint  debtors,  whether  in  partnership  or  not,  does  so,  and  the 
note  or  bill,  and  not  the  payment  of  it,  is  accepted  as  satisfac- 
tion, it  is  vahd;  giving  such  security  is  a  new  consideration;  for 
it  may  be  more  advantageous  than  the  debt  in  its  previous 
form.^    An  accord  and  satisfaction  moving  from  a  stranger,  or 


1 1  Smith  Lead.  Ca.  600;  Steinman 
V,  Magnus,  2  Camp.  124;  Bradley  v. 
Gregory,  2  Camp.  383;  Wood  v. 
Eoberts,  2  Stark,  417;  Boothby  v. 
Sowden,  8  Camp.  175;  Sibree  v. 
Trippe,  15  M.  &  W.  23. 

2  Jones  V.  Perkins,  29  Miss.  141; 
Smith  V.  Brown,  3  Hawks,  580; 
Harper  v.  Graham,  20  Ohio,  105; 
Austin  V.  Dorwin,  21  Vt.  39;  Sparm 
V.  Battzell,  1  Fla.  303;  Arnold  v. 
Park,  8  Bush,  3;  Miliken  v.  Brown, 
1  Rawle,  391. 

^Sonnenberg  v.  Riedel,  16  Minn. 
83;  Goodman  v.  Smith,  18  Pick.  114; 
Brooks  V.  White,  2  Met.  283;  Le\'y 
V.  Levy,  7  Eng.  148. 

4Keeler  v.  Salisbury,  33  N.  Y. 
648;  Brooks  v.  White,  3  Met.  283; 
Babcock  v.  Dill,  43  Barb.  577;  Le 
Page  V.  McCrea,  6  Wend.  167;  Har- 
rison V.  Close,  3  John.  448;  Seymour 
V.  Minturn,  17  John.  169;  Dederick 
V.  Leman,  9  John.  333;  ConkUn  v. 
King,  10  N.  Y.  440;  Webby  v.  Drake, 
1  C.  &  P.  557;  Belshaw  v.  Bush,  11 
C.  B.  191;  James  v.  Isaacs,  13  C.  B. 
791;  Steinman  v.  Magnus.  11  East, 


390;  Watkinson  v.  Inglesby,  5  John. 
386;  Henderson  v.  Stobart,  5  Ex. 
Ch.  99;  Dias  v.  Wanmaker,  1  Sandf. 
468.  See  Warburg  v.  WUcox,  7 
Abb.  336. 

5  Curlewis  v.  Clark,  3  Exch.  375; 
Cooper  V.  Parker,  15  C.  B.  825; 
Sibree  v.  Trippe,  15  M.  &  W.  23. 

*>  Thompson  v.  Percival,  5  B.  & 
Ad.  925;  Sheehy  v.  Mandeville,  6 
Cranch,  253;  Mason  v.  Wickersham, 
4  Watts  &  S.  100;  Cole  v.  Sackett,  1 
Hill,  577;  WaddeU  v.  Luer,  5  Hill, 
448;  S.  C.  8  Denio,  410;  Arnold  v. 
Camp,  13  John.  409;  Lodge  v.  Decas, 
3  B.  &  Aid.  611;  Pearson  v.  Thom- 
ason,  15  Ala.  700;  Russell  v.  Lytle,  6 
Wend.  390;  Barron  v.  Vandvert,  13 
Ala.  232;  Webb  v.  Goldsmith,  2 
Duer,  413;  Cartwrightv.  Cook,  3B.  & 
Ad.  701;  Evans  v.  Powis,  1  Exch. 
601;  Kinsler  v.  Pope,  5  Strobh.  126; 
Evans  v.  Drummond,  4  Esp,  N.  P. 
C.  93;  Reed  v.  White,  5  Esp.  N.  P. 
C.  133;  Lytle  v.  Ault,  7  Exch.  669; 
Bedford  v.  Deakin,  3  Stark.  178. 
See  Ricketts  v.  Hall,  2  Bush,  249; 
Keeler  v.  SaUsbury,  27  Barb.  489:  S. 


ACCOKD   AND    SATISFACTION. 


429 


a  person  having  no  pecuniary  interest  in  the  subject  matter,  if 
accepted  in  discharge  of  the  debt,  constitutes  a  good  defense  to 
an  action  to  enforce  the  liabihty  against  the  debtor.^  The 
debtor  sufficiently  adopts  it  by  taking  advantage  of  it  by  plea.- 
There  must  be  something  received  to  which  the  creditor  was  not 
before  entitled.'  And  it  must  possess  some  value,  or  by  legal 
possibihty  be  of  benefit  to  the  creditor.^  The  extent  of  the 
value  is  not  material.^  Part  of  a  claim  may  be  satisfied  by 
withdrawal  of  the  defense  of  infancy  to  the  residue.^  Sus- 
2)ension  or  abandonment  of  a  suit  is  a  sufficient  consideration.'' 
If  there  is  a  new  consideration  of  some  value  it  is  sufficient, 
thouo'h  it  is  of  much  less  value  than  the  debt  discharged.* 
"Where  a  debtor  pays  part  of  a  debt  for  which  the  creditor 
holds  a  note,  upon  an  agreement  that  such  part  payment  shall 
be  full  satisfaction,  and,  in  pursuance  of  such  agreement,  the 
note  is  surrendered  or  canceled,  the  transaction  will  amount  to 
full  accord  and  satisfaction.^  The  surrender  is  equivalent  to  a 
release.'" 


C.  33  N.  Y.  648;  Conklin  v.  King,  10 
Barb.  372.  In  Bowker  v.  Harris,  30 
Vt.  425,  a  wife's  note  was  held  suffi- 
cient consideration,  she  having  paid 
it,  though  it  was  void  when  made. 
See  also  Kirwan  v.  Kirwan,  4 
Tyrwh.  491;  Hart  v.  Alexander,  2 
M.  &  "W.  484;  Powles  v.  Page,  3  C. 
B.  16. 

1  Wilson  V,  Morrow,  6  Oliio  St.  71; 
Jones  V.  Broadhurst,  9  M.  Gr.  &  S. 
173;  Leavitt  v.  Morrow,  6  Ohio  St. 
71;  Harrison  v.  Hicks,  1  Port.  423; 
Daniel  v.  Hollenback,  19  Wend.  408; 
Qow  V.  Borst,  6  John.  37;  Stark  v. 
Thompson,  3  Mon.  296;  Woolfolk  v. 
McDowell,  9  Dana,  268;  Belshaw  v. 
Bush,  11  C.  B.  191. 

2  Belshaw  v.  Bush,  supra. 
^Bryant    v.  Proctor,   14  B.  Mon. 

451;  Hethcoate  v.  Crookshanks,  2  T. 
R.  24;  Hai-per  v.  Graham,  20  Ohio, 
106;  Good  v.  Cheeseman,  2  B.  &  Ad. 
328;  Fitch  v.  Sutton,  5  East,  230; 
Acker  v.  Phoenix,  4  Paige,  305; 
Commonwealth  v.  Miller,  5  T.  B. 
Mon.  2C5;  Riley  v.  Kershaw,  52  Mo. 


224;  Reese  v.  Hall,  26  Conn.  392; 
Bartlett  v.  Rogers,  3  Sawyer,  62. 

^Bleim  v.  Chester,  5  Day,  360; 
Booth  V.  Smith,  3  Wend.  66;  Web- 
ster V.  Wyser,  1  Stew.  184;  Keeler  v. 
Neal,  2  Watts,  424;  Davis  v.  Noakes, 
2  J.  J.  Marsh.  494.  See  ante,  p.  426; 
Foster  v.  Dowlen,  6  Exch.  839  and 
note. 

5 Id.;  Fennel's  Case,  5  Rep.  117; 
Andrews  v,  Bangliay,  Dyer,  756. 

« Cooper  V.  Parker,  15  C.  B.  822. 

'  Smith  V.  ]\Ionteith,  13  M.  &  W. 
427. 

*1  Smith's  Lead.  Cas.  pt.  1st,  *445; 
Kellogg  V.  Richards,  14  Wend.  116; 
Jones  V.  Ballett,  2  Litt.  49;  Brooks 
V.  White,  2  Met.  283;  Harper  v. 
Graham,  20  Ohio,  105;  Boyd  v. 
Hitchcock,  20  John.  76;  Le  Page  v. 
McCrea,  1  Wend.  164:  Sanders  v. 
Branch  Bank,  13  Ala.  353. 

'Ellsworth  V.  Fogg,  35  Vt.  355; 
Draper  v.  Hitt.  43  Vt.  439;  Beach  v. 
Endress,  51  Barb.  570. 

10  Id. 


430 


CONVENTIONAL,   LIQUIDATIONS    AND   DISCHARGES. 


Composition  with  ceeditoes. —  There  is  no  want  of  consid- 
eration in  agreements  for  composition  between  a  debtor  and  two 
or  more  of  liis  creditors ;  for  the  engagement  of  one  is  a  suffi- 
cient consideration  for  that  of  the  others.^  When  an  unhquidated 
or  disputed  demand  is  the  subject  of  accord,  and  a  certain  sum 
is  paid  and  acceuted  as  full  satisfaction,  the  consideration  is 
manifest. 

•  Compromise. —  A  settlement  or  compromise  of  a  disputed  or 
doubtful  claim  is  a  good  consideration  for  a  promise.^  Whether 
the  compromise  amount  be  received,  or  a  promise  to  pay  it,  the 
original  claim  is  extinguished  if  the  parties  so  agree ;  and  the 
compromise  is  a  sufficient  consideration.''  An  adjustment  of  any 
unliquidated  demand,  whether  in  dispute  or  not,  stands  on  a 
similar  principle.'*  Stated  accounts  and  settlements  are  treated 
with  favor,  and  are  conclusive,  unless  there  is  proof  of  mistake 


1  Pierson  v.  McCahill,  21  Cal.  123; 
Fellows  V.  Stevens,  21  Wend.  299; 
Stienman  v.  Magnus,  11  East,  399; 
Keeler  v.  Salisbury,  33  N.  Y.  648; 
Wayne  v.  Langley,  15  Ohio  St.  392; 
Ricketts  v.  Hall,  2  Bush,  249;  Tuck- 
erman  v.  Newhall,  17  Mass.  581: 
Diermyer  v.  Hackman,  52  Mo.  282; 
Reay  v.  White,  8  Tyrwh.  596;  Boyd 
V.  Hind,  1  H.  &  N.  938;  Cutter  v. 
Reynolds,  3  B.  Mon.  596;  Boothby 
V.  Sowden,  3  Camp.  174;  Bradley  v. 
Gregory,  2  Camp.  383;  Wood  v. 
Roberts,  2  Stark.  368;  Cockshat  t. 
Burnett,  2  T.  R.  765;  Hale  v.  Holmes, 
8  Mich.  37;  Hartle  v.  Stahl,  27  Md. 
157.  See  Case  v.  Garrish,  15  Pick.  49. 

2  Stewart  v,  Ahrenfeldt,  4  Deuio, 
189;  Wehrum  v.  Kahn,  61  N.  Y. 
023;  Hammond  v.  Christie,  5  Robt. 
160;  U.  S.  V.  Clyde,  13  Wall.  35;  U. 
S.  V.  Child,  12  Wall.  231;  U.  S.  v. 
Justice,  14  WaU.  535;  Pratt  v.  Uni- 
versalist  So.  63  Barb.  610. 

3 Id.;  Tuttle  v.  Nettle,  12  Met.  551; 
Peace  V.  Stennett,  4  J,  J.  Marsh.  449; 
Jones  V.  Bullett,  2  Litt.  49;  Reed  v. 
Hubbard,  6  Wis.  175;  Pulling  v. 
Supervisors,  3  Wis.  337;  Calkins  v. 


State,  13  Wis.  389;  Metz  v.  Soule, 
4  Iowa,  236;  Ogbern  v.  Hoffman, 
52  Ind.  439;  Riley  v.  Kershaw,  52 
Mo.  234;  Merry  v.  Allen,  39  Iowa, 
235;  Gates  v.  Shults,  7  Mich.  127: 
Converse  v.  Blumrich,  14  Mich.  109: 
Mayhew  v.  Phoenix  Ins.  Co.  23  Mich. 
105;  Hooper  v.  Hooper,  26  Mich.  435; 
Bowen  v.  Lockwood,  26  Mich.  441; 
Hall  V.  Swarthout,  29  Mich.  249; 
Campbell  v.  Skinner,  30  Mich.  32; 
Rutlunaiir  v.  Beckwith,  35  Mich. 
100;  Neary  v.  Bostwick,  2  Hilt. 
514. 

^  Donahue  v.  Woodbury,  6  Cush. 
148;  Bateman  v.  Daniels,  5  Blackf. 
71;  Harris  v.  Story,  2  E.  D.  Smith, 
363;  Longridge  v.  DorviUe,  5  B.  & 
A.  117;  Waiters  v.  Smith,  2  B.  &  Ad. 
889;  Haigh  v.  Brooks,  10  A.  &  El. 
309;  Wilkinson  v.  Byers,  1  A.  &  El. 
106;  Wright  V.  Acres,  6  A.  &  El.  729; 
Atlee  V.  Backhouse,  3  M.  &  W.  633; 
Sibree  v.  Trippe,  15  M,  &  W.  23; 
Llewellyn  v.  Llewellyn,  3  Dowl.  &  L. 
318;  Aliis  v., Billing,  3  Cush.  19;  Dur- 
ham v.  Waddingtou,  2  Strobh.  Eq. 
258;  Abbott  v.  Wilinot,  22  Vt.  437; 
Ellis  v.  Betzer,  3  Ohio,  39. 


ACCOKD   AND    SATISFACTION.  431 

or  frand.^  A  definite  sum  paid  or  agreed  to  be  paid,  and  adopted 
by  the  parties  as  an  adjustment  and  compensation  for  either  a 
doubtful  and  disputed  demand,  or  one  which  is  uncertain  and 
unhquidated,  constitutes  a  sufficient  consideration  for  the  dis- 
charge of  such  original  demand.  And  upon  such  adjustment, 
by  wliich  a  definite  sum,  paid  or  to  be  paid,  is  substituted  for 
the  claim  as  it  formerly  existed,  the  latter  is  extinguished,  on 
the  principle  of  accord  and  satisfaction. 

Where  money  is  due,  and  there  is  an  agreement  to  accept 
something  else  in  lieu  of  the  money,  and  that  something  else  is 
delivered  and  accepted,  the  agreement  cannot  Ije  said  to  be  with- 
out consideration,  though  the  thing  so  delivered  and  accepted  is 
of  less  value  than  the  nominal  amount  of  the  debt.  Anything 
of  legal  value,  whether  a  chose  in  possession  or  in  action,  act- 
ually received  in  full  satisfaction  of  a  debt,  is  good  for  that 
effect.2 

Nor  is  the  adequacy  of  the  consideration  affected  by  the  value 
of  tlie  collateral  thing  received  in  satisfaction  being  fixed  by  the 
agreement  of  the  parties  at  a  less  sum  than  the  amount  of  the 
debt.  Thus  where  a  larger  sum  than  $750  was  owing  and  actu- 
ally due  in  money,  an  agreement  to  receive  $750  worth  of  salt, 
and  the  actual  reception  of  it,  in  discharge  of  the  whole  debt, 
was  held  to  have  that  effect.^ 

lid.;  Wilde  v.  Jenkins,  4  Paige,  coin,    13    Mass.   424;    Musgrove   t. 

481;  Lockwood  t.  Thorn,   11  N.  Y.  Gibbs,  1  Dall.  216;  Arnold  v.  Post. 

170;  PuUiam  v.  Booth,  21  Ark.  420.  8  Bush,  3;  Churchill  v.  BoAvman,  39 

See  Purlet  v.  Morehead,  2  Dev.  &  Vt.  518;    Gavin  v.   Aunan,   2    Cal. 

Bat.  239.  494. 

2 1  Smith's  Lead.  Cases,  1  pt.  445;  3  Jones  v.  BuUett,  2  Litt.  49;  Wool- 
Jones  V.  BuUett,  2  Litt.  49;  Brooks  folk  v.  McDoweU,  9  Dana.  268;  Gaff- 
V.  White,  2  Met.  283;  N.  Y.  State  ney  v.  Chapman,  4  Robt.  275.  But 
Bank  v.  Fletcher,  5  Wend.  85;  Fris-  see  Howard  v.  Norton,  65  Barb.  161. 
bee  V.  Larned,  21  Wend.  451;  BuUen  In  Piatt  v.  Walrath,  Hill  &  Denio"s 
V.  McGillicuddy,  2  Dana,  90;  Pope  Supp.  59,  it  was  held  that  giving  a 
V.  TunstaU,  3  Pike,  209;  Booth  v.  mortgage  for  a  debt,  less  a  certain 
Smitli,  3  Wend.  66:  Boyd  v.  Hitch-  deduction  agreed  to  be  made  in 
cock,  20  John.  70;  L?Page  v.  Mc-  consideration  of  the  security,  is  not 
Crea,  1  Wend.  164;  Kellogg  v.  Rich-  payment  of  the  debt  so  that  a  note 
ards,  14  Wend.  116;  Sanders  v.*  subsequently  given  for  the  sum  de- 
Branch  Bank.  13  Ala.  353;  Blinn  v.  dvicted  will  be  deemed  given  with- 
Chester,  5  Day,  359;  Watkinson  v.  out  consideration. 
Inglesby,  5  John.  386;  Eaton  v.  Lin- 


432 


CONVENTIONAL   LIQUIDATIOXS    AND   DISCHARGES. 


Agreement  must  be  executed. —  The  agreement  or  accord 
must  be  executed.^  But  if  the  agreed  satisfaction  consist  in  an 
agreement  rather  than  the  performance  of  it,  the  accord  is  ex- 
ecuted when  the  agreement  which  is  the  consideration  of  the 
discharge  is  entered  into,  whether  it  is  ever  performed  or  not.^ 
But  to  a  bond,  accord  and  satisfaction  can  be  pleaded  by  deed 
only,  for  an  obligation  under  seal  cannot  be  discharged  but  by 
an  instrument  of  equal  dignity.^ 

Kescission  or  exoneration  before  breach. —  Eescission  of  an 
executory  contract,  or  exoneration  before  breach,  is  not  accord 
and  satisfaction.'*  After  breach,  however,  when  the  demand 
becomes  due  for  damages,  whatever  may  be  the  grade  of  the 


iHearn  v.  Kiefe,  38  Pa.  St.  147; 
Williams  v.  Stanton,  1  Root,  426; 
Pope  V.  Tunstall,  3  Pike,  209;  HaU 
V.  Smith,  10  Iowa,  48;  Hack  v.  Gar- 
land, 8  Md.  191;  Woodward  v.  Miles, 
24  N.  II.  289;  Coit  v.  Huston,  3 
John.  Cas.  243;  Watkinson  v.  In- 
glesby,  5  John.  386,  Russell  v.  Lytle, 
6  Wend.  390;  Bank  v.  DeGraw,  23 
Wend.  342;  Peyton's  Case,  9  Co.  79; 
Walker  v.  Seaborn,  1  Taunt.  526; 
Fitch  V,  Sutton,  5  East,  230;  Tuck- 
erman  v.  Newhall,  17  Mass.  581;  TU- 
ton  V.  Alcot,  16  Barb.  599;  Sprane- 
berger  v.  Dentler,  4  Watts,  126; 
Rising  V.  Pattei-son,  5  Whart.  316; 
Daniels  v.  Hatch,  1  Zab.  391 ;  Bagley 
V.  Homan,  3  Bing.  N.  C.  915;  Allies 
V.  Probyn,  5  Tyrwh.  1079;  Edwards 
V.  Chapman,  1  M.  &  W.  231;  Col- 
lingbourne  v.  ]\Iautell,  5  M.  &  W. 
292;  Grabriel  v.  Dresser,  15  C.  B. 
622;  Brown  v.  Perkins,  1  Hare,  564; 
Lawrence  v.  Woods,  4  Bosw.  354. 

■^Woodward  v.  Miles,  24  N.  H. 
289;  Watkinson  V.  Inglesby,  5  John. 
886;  Eaton  v.  Lincoln,  13  Mass.  424; 
Seaman  v.  Haskius,  2  John.  Ca.  195; 
Heaton  v.  Angier,  7  N.  H.  397;  Good 
V.  Chceseman,  2  B.  &  Ad.  328; 
Reeves  v.  Hearne,  1  M.  &  W.  326; 
Battigieg  v,  Booker,  9  C.  B.  689. 


3  Levy  V.  Levy,  7  Eng.  148;  Ligor 
V.  Dunn,  6  Ired.  133. 

4  BarriUi  v.  O'Connor,  6  Ala.  617. 
It  is  said  to  be  a  general  rule  of  law, 
that  a  simple  contract  may  before 
breach  be  waived  or  discharged 
without  deed  and  without  consider- 
ation; but  after  breach  there  can  be 
no  discharge  except  by  deed  or  upon 
sufficient  consideration.  Byles  on 
Bills,  168.  See  Foster  v.  Dawber,  6 
Exch.  838;  Dobson  v.  Espei,  2  H. 
&  N.  79.  This  is  doubtless  true  of 
contracts  mutually  executory.  In 
such  a  mutual  waiver  is  a  rescission. 
See  1  Smith's  Lead.  Ca.  *465.  If  the 
consideration  be  executed  on  one 
side,  the  execvitory  obligation  of  the 
otlier  party  founded  thereon  cannot 
be  waived  without  consideration,  or 
such  act  of  renunciation  as  would 
amount  to  a  release;  or  has  been 
acted  upon.  See  upon  this  general 
subject.  Blood  v.  Enos,  12  Vt.  625; 
Johnson  v.  Reed,  9  Mass.  78;  Rogers 
V.  Atkinson,  1  Kelly,  12;  Richard- 
son V.  Cooper,  25  Me.  450;  Cuff  v. 
Penn,  1   M.  &  S.  21;  Goss  v.  Lord 

■  Nugent,  5  B.  &  Ad.  58;  Cummings 
V.  Arnold,  3  Met.  480;  Dougherty  v. 
Stevens,  21  Pa.  St.  211;  Weld  v. 
Nichols,    17    Pick.    538;    Ward    v. 


RELEASE.  4:33 

contract  which  is  broken,  it  may  be  satisfied  by  matter  in  pais, 
and  is  subject  to  the  defense  of  accord  and  satisfaction.  It  is 
good  to  an  action  for  breach  of  covenant.^  And  the  modern 
doctrine  is  that  it  is  good  to  an  action  on  a  judgment.^ 

Section  4. 

RELEASE. 

Definition  —  Differs  from  accord  and  satisfaction  —  Effect  when  executed 
by  or  to  one  of  several  claiming  or  liable  —  What  acts  will  operate  as  a 
release  —  Covenant  not  to  sue. 

DEFiNrrioN. —  A  release  of  a  chose  in  action  is  an  mimediate 
technical  discharge  of  it  by  deed.  It  operates  directly  upon 
the  demand  to  extinguish  it,  and  must  be  pleaded  as  a  release.' 
But  a  release  implies  a  consideration,  and  therefore  the  demand 
Inferentially  is  satisfied.'*  The  cancelment  of  a  released  de- 
mand, however,  is  not  tlie  consequence  of  the  supposed  satis- 
faction, but  the  direct  effect  of  the  release.  The  release  is  not 
merely  evidence  of  the  extinguishment,  but  it  is  itself  the  ex- 
tinguisher.5  Though  it  recite  only  a  nominal  consideration,^  or, 
under  recent  statutes  allowing  the  consideration  of  sealed  in- 

Walton,  4  Ind.  75;  Low  v.  Forbes,  315;  Jones  v.   Ransom,   3  Ind,  327; 

18    111.    569;     Crowley  v.   Villey,  7  Eeed  v.  Hubbard,  6  Wis.  175;  Farm- 

Exch.  822;  Bank  v.  Woodward,  5  K  ers'  Bank  v.  Groves,  12  How.  U.  S. 

H.    99;  Payne    v.   The  New  South  51;    McCuUough    v.   Fi-anklin  Coal 

Wales  Coal  Co.  10  Exch.  291;  Kel-  Co.  21   Md.  256;  Campbell  v.  Booth, 

logg  V.  Olmsted,  28  Barb.  96;  Hunt  4    Gill,   29;  Le  Page    v.   McCrea,    1 

v.  Barfield,  19  Ala.  117;  Thurston  V.  Wend.    164;    Bro^vn    v.    Feetey,    7 

Ludwig,   6  Ohio    St.    1;    Adams  v.  W^end.    301;    Evans    v.    Wells,    23 

Nichols,    19    Pick.    275;    McKee    v.  Wend.  324,  341 ;  La  Farge  v.  Herter, 

Miller,   4  Blackf.   222;  Harrison  v.  11   Barb.    159;  Boyd  v.   Hitchcock, 

Close,  3  John.  448;  Sard  v,  Rhodes,  20  John.  76;  Witherby  v.  Mann,  11 

1  M.  &  W.  155;  Crawford  v.  Mills,  John.  518. 

13  John.  87;  Seymour  v.   Minturn,  ^Corbett  v.  Lucas,  4  McCord,  323. 

17  John.   169;  Foster  v.    Dawber,  6  *  Warner  v.  Durham,  Lalor'sSupp. 

Exch.  838,  note  on  p.  854;  King  v.  206;  Matthews  v.  Chicopee   Manuf. 

Gillett,  7  M.  &  W.  55;  Langdon  v.  Co.     3    Robt.     711;    McAUister    v. 

Stokes,  Cro.  Car.  383.  Sprague,  34  Me.  296. 

1  Payne  v.  Barnett,  2  A.  K.  Marsh.  5  McCrea   v.   Purmirt,   16    Wend. 

311;  Strang  v.  Holmes,  7  Cow.  224;  460,  474. 

Keeler  v.  Salisbury,  33  N.   Y.   648;  eWelt  v.  Franklin,  1  Binnoy,  502; 

U.  S.  V.  Howard,  4  Wash.  C.  C.  620.  Morse    v.  Shattuck,   4    N.    H.   229; 

li  Savage  v,  Everman,  70  Pa.    St.  Gully  v.  Grubbs,  1  J.  J.  Marsh.  387. 
Vol.  1  —  28 


434  CONVENTIONAL    LIQUIDATIONS    AND   DISCHARGES. 

struraents  to  be  inquired  into,  it  is  proved  to  be  only  nominal, 
the  release  will  still  operate  to  extinguish  the  claim  to  which  it 
relates.^ 

Differs  from  accord  and  satisfaction. —  A  seal  is  not  neces- 
sary to'  render  a  release  and  discharge  of  a  hability  effectual,  if 
the  agreement  embraces  the  demand  and  is  upon  a  sufficient  con- 
sideration. It  can  operate  to  extinguish  the  demand  by  way  of 
accord  and  satisfaction,^  and  in  this  form  a  debtor  may  avail 
himself  of  a  release  made  by  an  agent  in  his  own  name.^  A  mere 
receipt  may  have  such  an  effect;  but  it  is  onlj prima  facie  evi- 
dence of  the  payment.^  In  Connecticut  a  receipt  approximates 
in  its  effect  to  a  release.^  The  general  rule,  however,  is  that  a 
mere  receipt  is  but  evidence  of  the  payment  which  it  states,  and 
is  open  to  contradiction.^ 

A  release  not  under  seal,  and  without  consideration,  is  void."' 
Nor  will  equity  compel  a  creditor  to  affix  a  seal  to  a  release 
founded  on  no  consideration,  even  upon  an  averment  that  the 
seal  was  omitted  by  mistake.^  Extrinsic  proof  is  not  allowed  to 
restrict  a  release  of  all  demands,  by  showing  it  was  not  intended 
to  cover  particular  ones  which  are  within  its  terms.^  A  release 
may  extinguish  a  particular  demand,  although  it  was  not  in  the 
mind  of  the  parties  at  the  time  the  release  was  executed.  It  will 
be  held  to  embrace  demands  which  are  within  its  terms,  whether 
contemplated  or  not.^*' 

1  Stearns  v.  Tappen,  5  Duer,  294.  6  Coon  v.  Knap,  8  N,  Y.  402;  Eg- 
See  Davis  v.  Bowker,  2  Nev.  487;  gleston  v.  Knickerbocker,  6  Barb, 
and  see  also  Green  v.  Langdon,  28  458;  Houstiu  v.  Sliindler,  11  Barb. 
Mich.  222.  36;  White  v.  Parker,  8  Barb.  48. 

2  Farmers'  Bank  v.  Blair,  44  Barb.  7  Crawford  v.  Millepaugh,  13  John. 
641;  Corbett  v.  Lucas,  supra;  Coon  87;  Seymour  v.  Minturn,  17  John. 
V.  Knap,  8  N.  Y-  402;  Lewiston  v.  169;  Dewey  v.  Derby,  20  John.  462; 
Junction  R.  R.  Co.  7  Ind.  597.  Barnard  v.  Darling,  11  Wend.  28. 

3  Evans  v.  Wells,  22  Wend.  324.  8  Jackson  v.  Starkweather,  1  Cow. 

4  Thompson  v.  Fausate,  1  Pet.  C.  122. 

C.  182;  Mose  v.  Miller,  1  Wash.  Va.         ^Deland    v.     Amesbury    Manufg 
328.  Co.    7    Pick.    244;    W^est    Boylston 


5  Hurd  V.  Blackman,  19  Conn.  177 
Bishop  V.  Perkins,  19  Conn.  300 
Tucker  v.    Baldwin,  14  Conn.   136 


Manuf.  Co.  v.  Searle,  15  Pick.  225^ 
Rice  V.  Woods,  21  Pick.  30.  See  Van 
Brunt  V.   Van  Brunt,    3   Edw.    14; 


Bonnell  v.   Chamberlain,  26  Conn.      Hoes  v.  Van  Hoesen,  1  Barb.  Ch.  279. 
487.  10  Hyde  v.  Baldwin,  17  Pick.  307. 


RELEASE.  436 

In  construing  releases,  however,  general  Tvords,  and  even  those 
the  most  comprehensive,  may  be  limited  to  particular  demands, 
where  it  appears  by  the  consideration,  by  the  recitals,  and  by 
the  nature  and  circumstances  of  the  demands,  to  one  or  more  of 
which  it  is  proposed  to  apply  the  release,  that  such  restriction  is 
intended  by  the  parties.^  And  even  where  the  word  release  is 
used,  and  the  instrument  is  under  seal,  if  it  be  apparent  from  the 
whole  instrument  and  the  circumstances  of  the  case,  that  the 
parties  did  not  intend  a  release,  such  intention  as  may  appear 
will  prevail,  and  the  instrument  may  be  construed  simply  as  an 
agreement  not  to  charge  the  person  to  whom  it  is  executed.^ 

A  release  will  be  effectual  to  discharge  a  debt  or  hability, 
within  its  terms,  although  it  is  not  executed  by  all  in  whom  the 
right  of  action  is  vested ;  and  though  the  release  is  to  only  one 
of  several  persons  jointly  hable.  AVhere  several  must  join  as 
plaintiffs  in  bringing  an  action,  a  release  by  one  of  them  of  the 
cause  of  action  is  a  bar.^ 

Effect  whe^t  executed  by  or  to  one  of  several  claimixg  or 
LIABLE. —  One  of  several  joint  creditors  may  receive  payment  or 
satisfaction,  and  discharge  the  entire  obligation,  and  the  others 
will  be  bound.*  But  the  case  must  be  free  from  fraud  on  the 
co-creditors  who  do  not  join.^ 

iRich  T.  Lord,  18  Pick.  322.  23  Pick.  434;  Wilkinson  v.  Linde,  7 

2  Solly  T.  Forbes,  2  Brod.  &  Bing.  M.  &  W.  81;  Gibson  v.  Winter,  5  B. 
46;  1  Par.  on  Contr.  28.  See  Jackson     &  Ad.  96. 

V.  Stockhouse,  1  Cow.  122;  Mclntyre  ■*  Lumbermen's  Ins.  Co.  v.  Preble, 

V.  Wmiamson,  1  Edw.  341;  Kentz  v.  50  111.  332. 

Taylor,  6  Jolin.    Ch.  232;  Kirby  v.  ^Id.     And  in  Upjohn  v.  Ewing,  2 

Turner,    Hopk.    309;     Mathews    v.  Ohio  St.  13,  it  was  held  that  one  or 

Chicopee  Man.  Co.  3  Robt.  711,  less  than  aU  of  several  joint  cred- 

3  Wallace  v.  Kensall,  7  M.  &  W.  itors,  between  whom  no  partnership 
264;  Clark  v.  Dunsmore,  5  N.  H.  136;  exists,  cannot  release  the  common 
Kimball  v.  Wilson,  3  N.  H.  96:  Aus-  debtor,  so  as  to  conclude  the  co- 
tin  V.  Hall,  13  John.  286;  Decker  v.  creditors  who  do  not  assent  to  such 
Livingston,  15  John.  479;  Sherman  release.  Though  they  may  thus  de- 
V.  Ballou,  8  Cow.  304;  Pierson  v.  feat  an  action  at  law,  where  aU  the 
Hooker,  3  John.  68;  Napier  v.  Mc-  joint  creditors  must  join  in  an  ac- 
Leod,  9  Wend.  120;  Buckley  v.  Day-  tion,  it  does  not  follow  that  a  recov- 
ton,  14  John.  387;  Murray  v.  Blatch-  ery  inequity,  where  no  such  joinder 
ford,  1  Wend.  583.  See  Gram  v.  is  necessary,  may  not  be  had.  See 
Cadwell,  5  Cow.  489;Bruen  v.  Morg-  Emerson  v.  Baylies,  19  Pick.  55;  3 
nand,  17  Jolin.  58;  Halsey  v.   Fair-  Par.  on  Cont.  617  and  note. 

bank,  4  Mason,  906;  Wiging  v.  Tudor, 


436 


CONVENTIONAL   LIQUIDATIONS    AND   DISCHARGES. 


"Where,  liowever,  the  release  on  its  face  purports  to  be  a  satis- 
faction of  only  the  portion  of  the  debt  or  claim  belonging  to 
the  party  executing  the  release,  it  will  have  effect  only  to  that 
extent.  The  demand  will  then  be  deemed  severed  with  the 
debtor's  consent,  and  a  separate  action  may  be  brought  for  the 
residue  by  the  creditors  entitled  thereto.^  A  release  by  the 
nominal  creditor  is  not  good  against,  but  a  fraud  on,  the  real 
party  in  interest.  If  the  party  taking  it  and  seeking  to  avail 
himself  of  it  was  aware  that  the  releasor  had  no  interest  in  the 
demand  released,  the  release  wiU  be  disregarded.^ 

And  a  release  of  one  of  several  joint  or  joint  and  several 
debtors  or  wrongdoers  discharges  all.  The  deed  is  taken  most 
strongly  against  the  releasor,  and  is  conclusive  evidence  that  he 
has  been  satisfied.^    So,  if  one  is  discharged  by  law,  as  by  bank- 


iln  Holland  v.  Weld,  4  Greeulf. 
255,  there  was  a  contract  by  one 
with  four  persons  that  he  would 
clear  certain  obstructions  from  a 
river.  Afterwards  one  of  the  four 
executed  to  htm  a  release  from  all 
liabihty  to  such  party,  making  the 
release  for  any  damage  sustained  in 
consequence  of  any  past  or  future 
non-performance.  Mellen,  C.  J.,  said: 
"  This  release,  in  its  terms,  dis- 
charges Weld  from  his  liabilities  to 
Austin  only,  for  any  damage  sus- 
tained by  him.  To  give  it  any  more 
broad  and  extensive  operation  would 
be  contrary  to  the  expressed  inten- 
tion of  both  of  the  parties.  Accord- 
ing to  Cole  v.  Knight,  3  Mod.  277, 
and  Lyman  v.  Clark,  9  Mass.  235,  a 
release  should  be  confined  to  the 
object  which  was  in  view,  and  on 
which  it  was  plainly  the  intention  of 
all  that  it  should  operate.  The  con- 
tract was  originally  joint;  and  had 
no  release  been  given  by  Austin,  an 
action  must  necessarily  have  been 
brought  in  the  name  of  all  the  four 
against  the  defendant;  but  as  he  has 
accepted  the  release,  and  availed 
himself  of  it  so  far  as  he  was  once 
liable  to  Austin,  he  has  by  this  act 
converted  the  joint  contract  into  a 


several  one;  and  he  must  now  per- 
mit the  plaintiff  and  the  other  two 
promisees  to  consider  the  contract 
in  that  light,  and  assert  their  claims 
against  him  accordingly.  This 
course  is  manifestly  just  and  sanc- 
tioned by  settled  principles."  Baker 
V.  Jewell,  6  Mass.  460;  Carrington  v. 
Crocker,  37  N.  Y.  336. 

2  Cram  v.  Cadwell,  5  Cow.  489; 
Legh  V.  Legh,  1  Bos.  &  P.  447;  1 
Par.  on  Cont.  27;  Tinman  v.  Leland, 
6  Hill,  237;  2  Par.  on  Cont.  617,  and 
note.  A  surety  paying  the  debt  may 
be  subrogated,  notwithstanding  a 
legal  release  of  it.  And  an  intention 
to  be  subrogated  will  be  presumed 
from  the  mere  act  of  paying.  NeU- 
son  V.  Fry,  16  Ohio  St.  552;  Demp- 
sey  V.  Bush,  18  Ohio  St.  376. 

sCoke  Litt.  232;  Bac.  Abr.  Release, 
9;  Bronson  v.  Fitzhugh,  1  Hill,  185 
Rowley  v.  Stoddard,  7  John.  207 
Catskill  Bank  v.  Messenger,  9  Cow, 
37;  Hoffman  v.  Dunlap,  1  Barb.  185 
Parsons  v.  Hughes,  9  Paige,  591 
Ward  V.  Jolmson,  13  Mass.  148 
Tuckerman  v.  Newhall,  17  Mass 
581;  Wiggins  v.  Tudor,  23  Pick.  434 
Houston  V.  Darling,  16  Me.  413 
Ruble  V.  Turner,  2  Hen.  &  M.  39 
Cornell   v.  Master,    35   Barb.    157 


RELEASE.  43T 

ruptcy,  at  the  instance  or  with  the  consent  of  the  creditor  or  party 
injured.^  The  release  of  one  of  several  joint  debtors,  if  it  do  not 
increase  the  original  responsibilities  of  the  others,  will  not  work  a 
dissolution  of  the  contract  to  those  not  released.-  This  is  the 
case  where  parties  are  only  separately  hable ;  and  there  the  dis- 
charge of  one  does  not  discharge  any  other.'  The  plaintiff, 
however,  is  entitled  to  only  one  satisfaction ;  and  if  the  manner 
of  releasing  one  involves  satisfaction,  in  whole  or  in  ]iart,  of 
the  claim,  it  will  inure  to  the  discharge,  j'.>;'c»  tanto,  of  all  who 
are  hable  therefor.^  Where  two  are  separately  liable  for  the 
same  debt,  and  stand  in  such  relation  to  each  other  that  in  case 
of  payment  by  one,  there  is  a  right  to  reimbm-sement  or  con- 
tribution from  the  other,  then  a  release  of  the  part}"  bound  to 
reimburse,  or  liable  to  contribute,  has  been  held  to  be  a  dis- 
charge of  both ;  that  the  reason  the  release  of  one  joint  obligor 
discharges  the  other,  is,  that  if  either  pays  the  debt  the  other  is 
liable  to  contribution,  which  would  be  defeated  by  the  release, 
if  it  were  permitted  to  exonerate  only  the  party  to  whom  it  is 
made.  Thus,  where  by  the  constitution  and  statutes  of  a  state, 
stocldiolders  are  personally  liable,  jointly  and  severally,  for  the 
debts  of  a  corporation,  the  discharge,  by  release  under  seal,  of 
one  stockholder,  was  held  a  discharge  not  only  of  all  the  other 
stockholders,  but  a  discharge,  also,  of  the  corporation.^ 

Masters  v.  Chicopee  Man.  Co.  3  son,  5  Hill,  461;  Van  Rensselaer  v. 
Robt.  711;  Maltram  v.  Mills,  3  Chaclwick,  24  Barb.  333;  Mathewson 
Sauclf.  189;  Bloss  v.  Plymale,  3  W.  v.  Lydiate,  Cro.  Eliz.  408^70;  Bac. 
Va.  393;  Bro^m  v.  Marsh,  7  Vt.  320;  Abr.  Release,  (G). 
Armstrong  v.  Hayward,  6  Cal.  183;  ^Kasson  v.  People,  44  Barb.  347. 
Frink  v.  Green,  3  Barb.  455;  Rice  v.  5  Prince  v.  Ljmch,  38  Cal.  528.  Saw- 
Webster,  13  111.  321;  Prince  v.  Lynch,  yer,  C.  J.,  said:  "  If  not  jointly  lia- 
38  Cal.  528;  Hunt  v.  Terril's  Heirs,  ble  in  the  strict  sense  of  that  term, 
7  ]!ilarsh.  G8;  Dean  v.  Xewhall,  8  as  has  been  suggested,  the  legal  in- 
Term  R.  168;  Hatten  v.  Eyre,  6  cidents,  as  between  the  corporation 
Taunt.  289;  liacy  v.  Kinastou,  1  Ld.  and  stockholders,  to  the  extent  of 
Raym.  690;  12  Mod.  551;  2  Saimd.  their  personal  liability,  are,  it  seems 
48,  note  (1);  Johnson  v.  Collins,  20  to  us,  precisely  the  same.  The  stock- 
Ala.  435;  McAlliston  v.  Dennin,  27  holder  is  not  a  surety  in  any  sense 
Mo.  40.  of  the  term.     He  is  under  the  con- 

1  Robertson  v.  Smith,  18  John.  459;  stitution  and  statute  primarily  liable 
1  Par.  on  Cont.  29.  in  the  same  sense  as  the  corporation 

2  Mortland  v.  Himes,  8  Pa.  St.  265.  is  primarily  liable.     The  same  iden- 

3  Bank  of  Poughkeepsie  v.  Ibbot-  tical  act  which  casts  the  liability  on 


438 


CONVENTIONAL    LIQUIDATIONS    AND   DISCIIAKGES. 


A  simple  contrcact  cannot  operate  as  a  release,  and  be  pleaded 
as  such ;  therefore  such  an  agreement  for  the  discharge  of  one 
of  several  parties  jointly  or  jointly  and  severally  liable,  must, 
as  before  stated,  be  of  such  character  as  to  discharge  all  by 
way  of  accord  and  satisfaction.  If  the  agreement  embraces 
the  entire  cause  of  action,  and  purports,  upon  sufficient  consid- 


the  corporation  also  casts  it  on  the 
stockholder.  There  are  not  separate 
conti-acts.  The  stockholder  does  not 
stand  in  the  position  of  an  indorser 
or  guarantor.  An  indorser  or  guar- 
antor is  not  liahle  on  the  same  con- 
tract. His  contract  is  a  separate  and 
distinct  one  of  his  own,  to  which 
the  principal  is  no  party.  It  is 
founded  upon  the  principal  contract, 
and  finds  its  consideration  only  in 
that  contract;  but  it  is  a  separate 
and  distinct  contract,  nevertheless, 
and  the  terms  are  different.  Each 
is  liable  on  his  own  particular  con- 
tract, but  there  is  no  joint  con- 
tract, or  joint  obhgation.  The 
maker  and  indorser,  or  guarantor  of 
a  note  maybe  sued  jointly,  it  is  true, 
but  this  does  not  result  from  the 
fact  that  there  is  a  single  joint 
contract. 

"It  is  suggested  that  the  reason 
the  release  of  one  joint  obligor  dis- 
charges the  other,  is,  that  if  one 
pays  the  debt  the  other  is  liable  to 
contribution,  which  would  be  de- 
feated by  the  release  if  it  were  per- 
mitted to  exonerate  only  the  party 
to  whom  it  is  made.  On  this  ground 
it  is  said  to  be  held  to  extinguish  the 
debt.  Now  this  incident  attends  the 
relation  in  question,  and  this  princi- 
ple is  as  applicable  to  it  as  to  the 
case  of  two  joint  makers  of  a  note. 

"Suppose  the  corporation  is  sued 
and  a  recovery  had;  the  stockholder 
released  must  contribute  his  share, 
for  the  corporation  can  levy  an  as- 
sessment on  all  the  stockholders,  ac- 
coi'ding  to  their  respective  shares,  to 


raise  funds  to  pay  the  judgment. 
The  corporation  must  pay  it,  unless 
it  too  is  discharged,  and  the  other 
shareholders  are  entitled  to  have 
him  contribute  his  share.  Or,  sup- 
pose the  corporation  is  in  funds,  and 
pays  without  an  assessment,  it  takes 
from  the  stockholder  released  his  pro 
rata  share  of  a  fund  which  would 
otherwise  go  to  him  in  dividends, 
and  thus  he  is  made  to  contribute 
notwithstanding  his  release.  So, 
suppose  McClelland  had  sued  other 
stockholders  of  the  coi-poration  and 
recovered  and  collected  from  them 
the  whole  amount  of  his  debt;  the 
stockholder  or  stockholders  so  com- 
pelled to  pay  would  have  a  claim  for 
contribution  against  Lynch  for  his 
share,  and  thus  either  the  right  to 
contribution  of  the  shareholder  who 
has  been  compelled  to  pay,  or  the 
release  of  Lynch,  must  be  defeated. 
Suppose,  again,  that  McClelland 
should  discharge  all  the  stockholders 
from  personal  liability,  as  has  been 
suggested,  and  the  corporation  itself 
should  still  remain  liable,  each  stock- 
holder would  still  be  liable  to  con- 
tribute his  pro  rata  share,  either  in 
the  form  of  an  assessment  levied  by 
the  corporation  to  pay  the  debt,  or 
by  a  diminution  of  dividends,  and 
the  release  would  be  defeated,  or 
the  corporation  deprived  of  power 
to  protect  its  property.  One  of  two 
results  must  inevitably  be  reached. 
Either  the  debt  is  extinguished  as  to 
all  by  the  release,  or  the  release  is 
wholly  imperative  as  to  all.  Thus 
the  incidents  and  consequences  are 


RELEASE. 


439 


eration,  to  discharge  it,  it  will  have  that  effect  as  to  all  the  par- 
ties liable,  though  made  with  only  one.^  But  a  simple  contract 
to  discharge  one  of  several  who  are  Hable  will  not  have  that 
effect  by  force  of  the  agreement,  as  a  release  operates,  but  only 
by  force  of  the  agreement  based  upon  a  sufficient  consideration 
for  satisfaction  of  the  entbe  demand.-  Hence  a  conventional 
discharge  which  has  been  given  to  only  one  of  several  who  are 
bound,  in  order  to  have  the  effect  of  a  release  as  to  all,  and  to 
be  pleadable  as  a  release,  must  be  a  technical  release  under  seal.' 


the  same  as  between  joint  debtors 
and  joint  obligors  in  any  other  form. 
We  think,  tlierefore,  that  the  case  is 
within  the  rule,  and  that  a  valid  re- 
lease, under  seal,  discharges  the  cor- 
poration and  other  stockholders,  as 
well  as  the  stockholders  released. 
The  releases  to  the  defendant,  Lynch, 
referred  to  in  the  findings,  were  in 
due  form  and  under  seal,  and,  we 
think,  to  the  extent  of  the  amount 
released,  discharged  the  corporation 
£iS  well  as  L^'uch.  But  we  think  the 
•court  erred  in  holding  that  the  whole 
$416.66,  due  McClelland,  was  re- 
leased. The  language  of  the  release 
is:  '  I  hereby  release  and  discharge 
said  Francis  Lynch  from/u's  propor- 
tion of  said  company's  said  indebt- 
ness  to  me.'  The  release  by  its  ex- 
press terms,  then,  is  only  '  from  his 
proportion  of  said  company's  said 
indebtedness  to  me;'  not  from  the 
whole.  *  And  this  shall  be  said 
Lynch's  receipt  in  full,  to  date,  for 
his  proportion  and  share  of  all  in- 
debtedness to  me  by  said  company, 
and  a  bar  to  any  and  all  suits 
against  said  Lynch  for  the  same;' 
that  is  to  say,  for  his  proportion  and 
share.  It  is  manifest  that  McClel- 
land did  not  intend  to  release  his 
whole  demand,  but  only  Lynch's 
share.  Although  Lynch  miglit  be 
liable  under  the  act  to  pay  McClel- 
land the  whole  demand  against  the 


company,  as  held  in  Larrabee  v. 
Baldwin,  35  Cal.  155,  if  the  amount 
of  the  aggregate  debts  of  the  cor- 
poration upon  which  he  was  person- 
ally responsible  was  sufficient;  yet, 
the  whole  would  not  be  his  share  of 
the  indebtedness,  because  he  would 
be  entitled  to  recover  the  excess  paid 
by  him  over  his  share  from  the  cor- 
poration, and  to  call  upon  his  co- 
stockholders,  who  -weve  personally 
liable,  to  contribute.  The  fact  that 
he  might  be  liable  personally,  under 
the  statute,  in  the  first  instance,  to 
pay  the  whole  to  the  creditor,  does 
not  increase  or  diminish,  or  in  any 
way  affect  the  amount  of  his  share 
of  the  demand." 

1  Mathews  v.  The  Chicopee  Man. 
Co.  3  Robt.  711. 

2  Walker  v.  McCuUoch,  4  Greenlf. 
421;  MciUlister  v.  Sprague,  34  Me. 
296;  Rowley  v.  Stoddard,  7  John. 
207;  Harrison  v.  Close,  2  John.  449; 
Farmers'  Bank  v.  Blair,  41  Barb.  641; 
Shaw  V.  Pratt,  22  Pick.  305;  Smith 
v.  Bartholomew,  1  Met.  276.  See 
Ruble  V.  Turner,  2  Hen.  &  Munf .  39. 

3  Bloss  V.  Ply  male,  3  W.  Va.  393; 
Frink  V.  Green,  5  Barb.  455;  De  Zeng 
V.  Bailey,  9  Wend.  336;  RoAvley  v. 
Stoddarll,  7  John.  207;  McAllister  v. 
Spragvie,  34  Jle.  296;  Bronson  v. 
Fitzhugh.  1  Hill,  185;  Shaw  v.  Pratt, 
22  Pick.  305;  McAllister  v.  Dennin, 
27  Mo.  40;  Berry  v.  GiUis,  17  N.  H.  9. 


440  CONVENTIONAL   LIQUIDATIONS    AND   DISCHARGES. 

"No  special  form  of  words  is  necessary  in  a  release  if  the  inten- 
tion is  clear  to  discharge  the  debt.^ 

What  acts  will  opeeate  as  a  release. —  Various  acts  will 
have  the  effect  of  a  release.  The  act  of  surrendering  a  note  or 
other  evidence  of  debt  will  have  the  effect  of  a  technical  re- 
lease.2  A  bequest  of  the  debt  to  the  debtor ;  ^  the  intermarriage 
of  the  debtor  and  creditor ;  ^  appointment  of  the  debtor  executor,^ 
will  have  the  same  effect.  So,  taldng  judgment  against  one  of 
several  jointly  bound  without  taking  process  against  the  others, 
releases  those  not  sued ;  ^  or  taking  the  body  of  the  debtor  or 
one  of  several  on  execution  ^  and  chscharging  him  from  custody 
has  the  effect  of  a  release. 

Covenant  not  to  sue. —  A  covenant  with  the  sole  debtor  or 
aU  the  debtors  never  to  sue,  or  not  to  sue  without  any  limita- 
tion of  time,  wiU,  on  the  principle  of  avoiding  circuity  of  action, 
have  the  effect  of  a  release.^  For  the  same  reason  a  cov- 
enant by  the  creditor  to  indemnify  the  debtor  against  the  par- 
ticular debt  is  a  release.^  But  a  covenant  not  to  sue  one  of 
several  joint  debtors  or  joint  obligors,  or  to  indemnify  him,  is 

1 2  Par.  on  Cont.  713.  iams  v.  De  Castro,  4  C.  B.  N.  S.  244 

2  Beach  v.  Endress,  51   Barb.  570.-  Badley    v.   Viguss,   4    E.    &  B.  71 

SHobart    v.  Stone,  10    Pick.  215.  Giles  v.  Spencer,  3  C.  B.  N.  S.  244 

4  Curtis  V.  Brooks,  37  Barb.  476;  Phelps  v.  Johnson,  8  John.  54 
Smiley  v.  Smiley,  68   Ohio  St.  543.  Clark  v.  Bush,  3  Cow.  151;   Brown 

5  Thomas  v.  Thompson,  2  John.  v.  Williams,  4  Wend.  360;  Hosack 
470;  Echelberger  V  Morris,  4  Watts,  v.  Rogers,  8  Paige,  229;  Harting  v, 
42;  Fischel  v.  Fischel,  7  Watts,  44;  Dickinson,  7  Mass.  155;  Shed  v. 
Reab's  Estate,  16  Ohio  St.  274.  Pierce,  17  Mass.  623;  Williamson  v. 

6 Mitchell  V.  Brewster,  28  111.  163;  McGiunis,    11   B.  Mon.  74;  Lane   v. 

Anderson  v.   Levan,  1  Watts  &  S.  O wings,  3    Bibb,    247;    Harvey    v. 

334;  Jones  V.  Johnson,  3  Watts  &  S.  Harvey,  3  Ind.  473;  Reed  v  Shaw, 

276;  Stewart's  App.  3  Watts  &S.  476.  1  Blackf.   245;    Jackson    v.    Stack- 

V  Gould  v.  Gould,  4  N.  ,  H.  173;  house,  1  Cow.  122;  White  v.  Deng- 
Palethorpe  v.  Lesher,  2  Rawie,  272;  ley,  4  Mass.  433;  Sewall  v.  Spar- 
Sharp  v.  Speckenagle,  3  S.  &  R.  464.  row,   16  IMass.   24;  Garnett  v.    Ma- 

sCIapperv.  Union  Bank,  7  Har.  &  con,   6    Call.    308;  Lacy  v.   Kynas- 

J.  92;  Parker  v.  Holmes,  4  N.  H.  97;  ton,  2  Salk.  575;  12  Mod.  551;  2  Ld. 

Hodges    v.    Smith,    1    D.  &  E.  446;  Raym.  688;  Dean  v.  NewhaU,  8  T. 

Cuyler  v.  Cuyler,  2  John.  186;  Ar-  R.   168.     See  Kowing  v.   Morley,  2 

nold  V.  Park,  8  Bush,  3;  2  Saund.  Abb.  N.  S.  377. 

48,   note  (1);    Cro.   Eliz.    353,    623;  sCannop    v.    Levy,    11   Q.  B.  769; 

Ford  v.  Beach,  17  Q.  B.  852;  Will-  Clark  v.  Bush,  3  Cow.  151. 


RELEASE.  441 

not  a  i^elease ;  the  covenantee  has  only  a  remedy  by  action  on 
the  covenant ;  ^  because  it  cannot  be  inferred  from  such  a  cove- 
nant that  it  was  the  intention  to  discharge  the  debt.^ 

It  cannot  avail  as  an  estoppel  in  order  to  avoid  cu'cuity  of 
action.  It  is  said  by  high  authority  that  a  covenant  containing 
no  words  of  release  has  never  been  construed  as  a  release,  unless 
it  gave  the  party  claiming  the  benefit  of  that  construction  a. 
right  of  action  which  would  precisely  countervail  that  to  which 
he  was  liable ;  and  unless,  also,  it  was  the  intention  of  the  par- 
ties that  the  last  instrument  should  defeat  the  first.^  And  where 
two  are  jointly  and  severally  bound,  a  covenant  not  to  sue  on© 
does  not  amount  to  a  release  of  the  other,^  unless,  perhaps,  the 
covenant  be  given  after  a  suit  had  been  brought  separately 
againsj;  one,  and  the  creditor  had  by  that  action  chosen  to  con- 
sider the  covenantee  the  sole  debtor.^  The  amount  paid,  how- 
ever, upon  the  demand  by  way  of  partial  discharge  as  a 
consideration  for  such  a  covenant,  wiU.  be  regarded  as  satisfac- 
tion to  that  extent.^ 

]!!^or  will  a  covenant  with  a  debtor  not  to  sue  for  a  hmited 
time  suspend  the  right  of  action.'^ 

1  Tiickerman  v.  Newliall,  17  Mass.  &  W.  210;  Dow  v.  Tiittle,  4  Mass. 
580;  i\mier  v.  Fenton,  11  Paige,  18;  414;  Alof  v.  Scrimshaw,  2  Salk.  573; 
Harrison  T.  Close,  2  John.  448;  Cats-  Hoffman  v.  Brown,  1  Halst.  429; 
kill  Bank  v.  Messenger,  9  Conn.  37;  Fullam  v.  Valentine,  11  Pick.  159; 
Rowley  v.  Stoddard,  7  John.  207;  Gamett  v.  Macon,  5  Call,  308;  Lacy- 
Bank  of  Chenango  v.  Osgood,  4  v.  Kynaston,  2  Salk.  575;  12  Mod. 
Wend.  G07;  Couch  v.  Mills,  21  Wend.  551;  2  Ld.  Eaym.  688;  Dean  v.  Xew- 
424;  Shed  v.  Pierce,  17  Mass.  623;  tall,  8  T.  R.  168. 
Goodeuow  v.  Smith,  18  Pick.  414;  ^id.;  Ruggles  v.  Patten,  8  Mass. 
Aylesworth  v.  Brown,  21  Ind.  270;  480;  Sewall  v.  Sparron,  16  jMass.  24; 
City  of  Carondelet  v.  Desuoyer,  27  Shed  v.  Pierce,  17  Mass.  623;  Snow 
Mo.  36;  Walker  V.  McCulloch,  4  v.  Chandler,  10  N.  H.  92;  Walker  v. 
Greenlf.  421;  Williamson  v.  McGin-  McCulloch,  4  Greenlf.  421;  DureUv. 
nis,  11  B.  Mon.  74;  Lane  v.  O wings,  Wendell,  8  N.  H.  369. 

3  Bibb,  247;  Fi'ink  v.  Green,  5  Barb.  ^  Garnet  v.  Macon,  6  Call,  308.  See 
455;  Snow  v.  Chandler.'  10  N.  H.  92;  Berry  v.  Gillis,  17  N.  H.  9. 

Mason  v.  Jewett,  2  Dana,  107;  Berry  -Lacy  v.  Kynaston,  13  :Mod.  548, 

V.  GiUis,  17  N.  H.  9;  Durell  v.  Wen-  551;  Ward  v.  Johnson,  6  Munf.  6; 

deU,  8  N.  H.  369;  Parker  v.  Holmes,  Tuckerman    v.    Newhall,    17  Mass. 

4  N.  H.  97;  Smith  v.  Mapleback,  1  581;  Huston  v.  Eyre,  6  Taunt.  289. 
D.   &    E.   446;  Hutton    v.    Eyre,   6  5  Shed  v.  Pierce,  17  Mass.  628. 
Taunt.    289;    Gibson  v.   Gibson,    15  esuow  v.  Chandler,  10  N.  H.  92. 
Mass.     112;     Ward    v.    Jolmson,    6  7  id. ;  Guard  v.  Whiteside,   13  111. 
Munf.  6;  Trimbley  v.  Barron,  3  M.  7;  Foster  v.  Purdy,  5  Met.  442;  How- 


442 


COISrVEIsTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


The  release  of  the  principal  debtor  will  release  the  sureties, 
and  the  release  of  a  primary  security  will  discharge  collaterals.^ 
But  it  is  comjjetent  to  provide  otherwise  in  the  release,  and  to 
reserve  a  right  to  resort  to  securities.^ 

And  a  release  may  by  express  provision  discharge  one  of  sev- 
eral who  are  liable,  and  exempt  others  from  its  operation.  In 
such  case  the  action  may  be  brought  against  all  for  the  purpose 
of  recovery  against  those  not  released.*  Such  a  reservation  or 
limitation  cannot  be  made  by  parol.'*  "When,  however,  the 
debtor,  or  one  of  several  debtors  jointly  bound,  stipulates  that 
his  discharge  shall  not  prevent  a  recovery  against  other  parties, 
it  is  imphed  that  he  will  not  set  up  his  discharge  against  them 
when  they  have  paid  the  demand  and  call  on  huu  for  reim- 
bursement or  contribution.^  ^ 

A  release  cannot  take  effect  infuhiro,  or  upon  a  future  right 
of  action ;  but  only  upon  some  present  right  either  complete  or 
inchoate ;  it  may  be  so  framed  as  to  cut  off  a  conditional  or 
contingent  liability,  as  for  example  that  of  indorser.^ 


land  V.  Marvin,  5  Cal.  501;  Clark  v. 
Eussell,  3  Watts,  213;  Ha  maker  v. 
Eberly,  3  Bin.  510;  Berry  v.  Bates, 
2  Blackf.  118;  Reed  v.  Shaw,  1 
Blackf.  245;  Tholman  v.  Barber,  5 
Ind.  178;  Lowe  v.  Blair,  6  Blackf. 
282;  Pearl  v.  Wells,  6  Wend.  291; 
Chandler  V.  Herrick,  19  John.  129; 
Winans  v.  Horton,  6  Wend.  471; 
Perkins  v.  Gilman,  8  Pick.  229; 
Couch  V.  Mills,  21  Wend.  424.  But 
see  Clapper  v.  Union  Bank,  7  Har. 
&  J.  92;  Blair  v.  Reed,  20  Tex.  310; 
Morgan  v.  Butterfield,  3  Mich.  615. 
1  Jackson  v.  Stackhouse,  1  Cow, 
122;  Maltram  v.  Mills,  2  Saudf.  189; 
Newcomb  v.  Raysor,  21  Wend.  108; 
Brown  v.  Williams,  4  Wend.  360.  A 
release  by  an  acceptor  of  the  drawer, 
discharging  him  from  all  claim  for 
damages,  etc.,  as  drawer  of  a  bill, 
will  not  bar  an  action  by  the  ac- 
ceptor for  money  paid  to  take  up  the 
bill  for  the  drawer's  accommodation. 
Pearce  v.  Wilkins,  2  N.  Y.  469; 
affirming  S.  C.  5  Denio,  541. 


2  Pierce  V.  Sweet,  33  Pa.  St.  151; 
Bruen  v.  Marquaid,  17  John.  58; 
Stewart  V.  Eden,  2  Cai.  121;  Sohier 
V.  Loring,  6  Cush.  537;  Hutchins  v. 
Nichols,  10  Cush.  302;  Seymour  v. 
Minturn,  17  John.  169;  Keeler  v. 
Bartier,  12  Wend.  110;  Hubbell  v. 
Carpenter,  5  N.  Y.  171,  See  Mat- 
thews V.  Chicopee  Man.  Co,  3  Robt. 
711. 

3  Twopenny  v.  Young,  3  B.  &  C. 
211;  Lancaster  v.  Harrison,  4  M.  & 
P,  561;  S.  C.  6  Bing.  726;  Sally  v. 
Forbes,  2  Brod.  &  Bing.  38;  North  v. 
Wakefield,  13  Q.  B.  538. 

4  Bronson  t.  Fitzhugh,  1  Hill,  185; 
Brooks  V.  Stewart,  7  A.  &  E.  854. 

5  1  Par.  on  Cont.  285;  Hubbell  v. 
Carpenter,  5  N.  Y,  171;  Pitman  on 
Pr.  &  Surety,  181-2,  189. 

6  Reed  v.  Tarbell,  4  Met.  93;  Nich- 
ols V,  Tracy,  1  Sandf.  278;  Pierce  v. 
Parker,  4  Met.  80;  Hastings  v,  Dick- 
inson, 7  Mass,  153;  Gibson  v.  Gib- 
son, 15  Mass.  110.  Parsons  says  (3 
Par.   on    Cont.  714):     "A   release. 


TENDER.  4i3 


Sectio2<^  5. 

TENDER. 

On  U'hat  demands  tender  may  he  made —  TT7ic?i  it  may  he  made  —  In  what 
money  —  By  ichom  —  To  ivhoni  —  It  must  be  sufficient  in  amount  —  Hoio 
to  he  made  — Must  he  unconditional — Effect  of  tend.er  accepted  —  Must 
he  kept  good  — Must  he  pleaded  and  money  paid  into  court  —  Effect  of 
plea  of  tender  —  Effect  of  tender  after  vioney  paid  into  court  —  Effect 
of  sufficient  tender  on  collateral  securities  —  Paying  money  into  court. 

Though  a  tender,  not  accepted,  does  not  go  to  the  extent  of 
liquidation,  it  is  so  connected  with  the  subject  of  payment,  as  to 
justify  some  consideration  of  it  in  this  connection.  A  debtor 
has  the  right  at  common  law,  before  suit,  to  tender  the  amount 
due  to  his  creditor  upon  a  certain  and  liquidated  demand,  and 
thereby'  save  himself  from  the  payment  of  subsequent  interest 
or  costs. 

Ox   WHAT    DEilAXDS    A  TENDER  MAY  BE  MADE. It    SCCmS  that  a 

tender  may  be  made  on  a  quantum  meruit,^  but  not  a  claim  for 
unliquidated  damages.-  It  may  be  pleaded  in  an  action  on  a 
bare  covenant  for  the  payment  of  money.' 

When  it  may  be  made. —  At  common  law,  the  tender  must  be 
made  before  commencement  of  suit,  but  this  limitation  has  long 
since  been  generally  abrogated  by  statute.*    It  is  no  answer  to 

strictly  speaking,  can  operate  onlj'  ■*  Bac.  Abr.  Tender;  Fisliburne  v. 

on  a  present  right,  because  one  can  Sanders,    1    Nott.  &    McCord,  243; 

give  only  what  he  has,  and  can  only  Reed  v.  Woodman,  17  Me.  43:  Knight 

promise  to  give  what  he  may  have  v.  Beach,  7  Abb.  N.  S.  241;  Suffolk 

in  future.      But  where  one  is  pos-  Bank  v.  Worcester  Bank,  5  Pick. 

sessed  of  a  distinct  right,  which  is  106;  Jackson  v.    Law,  5  Cow.  248; 

to  come  into  effect  and  operation  Mun-ay    v.    Wendley,    7    lud.  201; 

hereafter,  a  release  in  words  of  the  Retau  v.  Drew,  19  Wend.  304.      In 

present  may  discharge  this  right."  Sweatlaud    v.    Tuthili,    54  111.   215, 

1  Johnson  V.  Lancaster,  1  Str.  576.  Walker,  J.,  said:    "It  is  first  urged 

See  Searle  v.  Barrett,  2  A.  &  E.  82.  that  our  practice  does  not  warrant 

2Id.;  Green  V.  Shurtliff,  19  Vt.  592;  the  payment  of  money  into  court, 

Gregory  v.  Wells,  62  111.  232;  Cilley  so  as  to  escape  the  payment  of  the 

V.  Hawkins,  48  111.  308;  McDowell  v.  costs  of  the  suit.     This  may  be  ti-ue, 

Keller,  4  Cold.  258.  but  we  deem  it  unnecessaiy  to  de- 

3  Johnston  v.   Clay,  7  Taunt.  486;  termine  that  question  in  this  case. 

1  Moore,  200.     See  Mitchell  v.  Greg-  Tlie  law  does  clearly  authorize    a 

ory,  1  Bibb,  449;  post,  p.  G97.  debtor    to  make  a    tender    of    the 


444:  CONVENTIONAL    LIQUIDATIONS    AND    DISCHAEGES. 

a  plea  of  tender,  before  the  commencement  of  the  suit,  that  the 
j)laintiff  had,  before  such  tender,  retained  an  attorney  and  in- 
structed him  to  sue  out  a  writ  against  the  defendant,  and  that 
the  attorney  had  accordingly  applied  for  such  writ,  before  the 
tender,  and  the  writ  was  afterwards  sued  out.^ 

In  strictness,  the  plea  of  tender  is  apphcable  only  to  cases 
where  the  party  pleading  it  has  never  been  guilty  of  any  breach 
of  his  contract,  and  therefore  is  not  good  if  the  tender  be  made 
after  the  day  fixed  for  papuent.^  But  this  strictness  is  not  ad- 
hered to  in  this  country,  and  in  many  of  the  states  the  right  of 
tender,  at  any  time  after  the  debt  is  due,  is  recognized.^  If  pay- 
ment is  required  to  be  made  within  a  certain  period,  which  ends 
on  Sunday,  a  tender  the  next  day  is  in  time.^  It  may  be  made 
on  an  interest-bearing  debt  before  it  is  due,  tendering  the  amount 
which  would  be  due  at  maturity.^  Some  doubt  has  been  ex- 
pressed whether  a  tender  is  good  of  a  debt  not  bearing  interest 
before  it  is  due.^ 

In  computing  the  time,  after  entry  for  condition  of  a  mort- 
gage broken,  within  which  a  mortgagor  may  redeem,  the  day  of 
entry  is  to  be  excluded.^  And  where  payment  must  be  made,  as 
in  such  a  case,  within  a  certain  period,  it  has  been  made  a 
question  at  what  time  of  the  last  day  the  right  of  payment  or 
tender  expires.  In  the  old  cases  it  is  held  that  pajnnent  should 
be  made  at  a  convenient  time  in  which  the  money  may  be 
counted  before  sunset.^     It  is  probable  that  the  courts  would 

amount  he  owes  his  creditoi",  and  106;  Dewey  v.  Humphrey,  5  Pick, 
thus  relieve  himself  from  costs,  if  a  187;  Frazier  v.    Cushman,  12  Mass. 
suit    shall    afterwards  be  brought.  277;    Rose    v.    Brown,    Kirby,   293; 
And  no  reason  is  perceived  why  a  Tracy  v.  Strong,  2  Conn.  659;  Stud- 
debtor  may  not,  even  after  a  suit  is  well  v.  Cook,  28  Conn.  549;  Ashburn 
brought,  and  at  any  time  before  the  v.  Poulter,  35  Conn.  553. 
trial,  make  a  sufficient  tender  and  3  o  Par.  on  Cont.  642. 
relieve  himself  from  future  costs."  ^  Sands  v.  Lj^on,  18  Conn.  18. 
See  Thurston  V.  Marsh,  14  How.  572.  5  Eaton  v.    Emerson,  14  Me.  335; 

iBriggs  V.  Calverly,  8  T.  R.  629.  Tillon  v.  Butler,  4  Halst.  120;  Saun- 

See   Kerton  v.  Braithwaite,  1  M.  &  ders  v.  Frost,  5  Pick.  259. 

W.  3;  Hall  v.  Peters,  7  Barb.  331.  e2  Par.  on  Cont.  642.  See  McHard 

2 Hume    V.    Peploe,   8    East,    186;  v.  Whitcroft,  3  Har.  &  McH.  85. 

Poole  V.  Turnbridge,  2  M.  &  W.  223;  7  Y/ing  v.  Davis,  7  Greenlf.  31. 

Dobie  V.  Larkin,  10  Exch.  776;   City  8  lu  Wade's  Case,  5  Coke,  115;it  was 

Bank  V.  Catlin,  3  Pick.  414;  Suffolk  said:    "Although  the  last  time  of 

Bank  v,   Worcester  Bank,  5  Pick,  payment  of  the  money  by  force  of 


TENDER. 


44:5 


not  now  recognize  the  rule  as  a  fixed  and  arbitrary  require- 
ment, without  regard  to  circumstances,  to  tender  the  money 


the  condition  is  a  convenient  time 
in  which  the  money  may  be  counted 
before  sunset;  yet,  if  the  tender  be 
made  to  him  who  ought  to  receive 
it  at  the  place  specified  in  the  con- 
dition, at  any  time  of  the  day,  and 
he  refuse  it,  the  condition  is  forever 
saved,  and  the  mortgagor  or  obhgor 
needs  not  make  a  tender  of  it  again 
before  the  last  instant."  See  Coke 
Litt.  202. 

In  Wing  v.  D?,vis,  7  Greenlf.  31, 
the  validity  of  a  tender  made  late  in 
the  evening  of  the  last  day  to  re- 
deem after  entry  for  condition 
broken  was  in  question.  Mellen,  C. 
J.,  said:  "In  Hill  v.  Grange,  1 
Plowd.  178,  the  condition  was  to 
pay  rent  within  ten  days  after  cer- 
tain feasts,  in  which  case  the  justices 
unanimously  held  that  the  lessee 
had  liberty  within  the  ten  days;  and, 
therefore,  they  observe  '  the  lessee 
is  in  no  danger  so  long  as  he  has 
time  to  come  and  pay  it;  and  he  has 
time  to  come  and  pay  it  as  long  as 
the  tenth  day  continues;  and  the 
tenth  day  continues  until  the  night 
comes;  and  when  the  night  is  come, 
then  his  time  elapses.  So  that  his 
time  to  pay  continues  until  the 
separation  of  day  and  night.  And 
in  arguing  this  point,  Robert  Brook, 
chief  justice,  and  Saunders,  said 
that  if  the  rent  reserved  was  a  great 
sum,  as  £500  or  £1,000,  the  lessee 
ought  to  be  ready  to  pay  it  in  such 
convenient  time  before  sunset,  in 
which  the  money  might  be  counted; 
for  the  lessor  is  not  bound  to  count  it 
in  the  night,  after  sunset,  for  if  so  he 
might  be  deceived;  for  Brook  said, 
Qui  ambiilat  intenehris  nescit  qua 
■vadit.'  The  language  of  the  court 
in  the  case  of  Greeley  v.  Thurston 
■does  not  advance  a  different  prin- 


ciple. The  question  is,  what  is  the 
whole  day  in  relation  'to  a  tender  in 
contracts  of  this  character.  We  are 
not  aware  that  modern  decisions 
have  changed  the  law  as  established 
by  the  old  cases;  or  the  facts  neces- 
sary to  be  i^roved  to  support  a  plea 
of  tender;  except  so  far  as  the  con- 
duct of  the  creditor  may,  in  certain 
cases,  amount  to  a  waiver  of  objec- 
tions against  the  formality  of  the 
tender,  or  in  case  of  his  artful 
avoidance  or  evasion.  In  the  case 
before  us  there  is  nothing  like  a 
waiver  as  to  the  unseasonableness  of 
the  hour;  in  fact,  this  was  the  ob- 
jection made  by  the  defendant  at 
the  time  of  the  alleged  tender; 
which  was  attempted  to  be  made 
not  long  before  midnight,  when  the 
defendants  and  their  fauiilies  were 
asleep,  and  all  the  lights  extin- 
guished. No  reason  has  been  as- 
signed why  a  payment  or  a  tender 
■was  delayed  to  so  unusual  an  hour; 
and  if  a  loss  to  the  plaintiff  is  the 
consequence  of  this  strange  delay, 
he  must  thank  his  own  imprudence. 
AVe  do  not  decide  that  a  tender  may 
not,  in  any  cii"cumstances,  be  good, 
though  made  after  the  departure  of 
daylight;  it  is  not  necessary  to  in- 
timate any  opinion  on  the  point. 
Our  decision  is  founded  on  the  facts 
of  this  case;  and  the  tender  not  hav- 
ing been  made  in  due  season,  we 
need  not  inquire  as  to  tiie  sufficiency 
of  the  sum  which  was  offered." 

In  Greeley  v.  Thurston,  4  Greenlf. 
479,  the  question  was  when  the  de- 
fault of  the  maker  of  a  promissory 
note  occurred,  he  claiming  that  he 
had  the  whole  of  the  last  day  in 
which  to  pay  it,  and  that  until  that 
day  is  passed  he  cannot  be  said  to 
have  broken  his  contract.    Weston, 


446 


CONVENTIONAL    LIQUIDATIONS    AND   DISCHARGES. 


while  the  dayhght  lasts.     There  is  some  reason  for  holding  a 
tender  unseasonable  which  is  made  late  at  night,  if  the  creditor 


J.,  said:  "  There  is  no  question  that 
with  regard  to  bonds,  mortgages  and 
instruments  in  writing,  other  than 
notes  of  hand  or  bills  of  exchange, 
the  party  who  engages  to  pay- 
money,  or  to  perform  any  other 
duty,  fulfils  his  contract,  if  he  does 
so  on  any  part  of  the  day  appointed. 
Unless  the  case  of  negotiable  paper 
forms  an  exception  to  the  general 
rule  which  attaches  to  other  written 
contracts,  the  maker  of  a  negotiable 
note  of  hand  and  the  acceptor  of  a 
bill  of  exchange  are  nc)t  liable  to  be 
sued  until  the  day  after  these  instru- 
ments become  due  and  payable.  In 
the  case  of  Leftley  v.  Mils,  4  D.  &  E. 
170,  we  have  the  opinion  of  Mr. 
Justice  Buller,  given  in  strong 
terms,  although  the  decision  was 
finally  placed  upon  another  ground, 
that  the  general  rule  before  inti- 
mated does  not  apply  to  bills  of 
exchange.  In  that  case,  a  clerk 
called  with  the  bill,  upon  which 
the  question  arose,  at  the  house 
of  the  defendant,  the  acceptor,  on 
the  day  it  became  due,  and,  not 
finding  him  at  home,  left  word 
where  the  bill  might  be  found,  that 
the  defendant  might  send  and 
take  it  up ;  this  not  being  done  at 
six  o'clock  in  the  evening,  it  was 
noted  for  non-payment.  Between 
seven  and  eight  o'clock  the  same 
clerk  called  again  on  the  defendant 
with  the  bill,  who  then  offered  to 
pay  the  amount  of  it,  but  refused  to 
pay  an  additional  half-crown  for  the 
notary.  Lord  Kenyon  was  of  opinion, 
at  the  trial,  that  the  tender  was 
sufficient,  and  directed  a  verdict  for 
the  defendant.  A  rule  was  obtained 
to  show  cause  why  the  verdict 
should  not  be  set  aside  and  a  new 
trial    granted.     The  court  said,   in 


gi'anting  the  rule,  that  the  main 
question  was  whether  the  acceptor 
had  the  whole  day  to  pay  the  bill  in, 
or  whether  it  became  due  on  de- 
mand at  any  time  on  the  last  day. 
After  argument,  Lord  Kenyon  stated 
that  in  this,  as  in  other  contracts, 
the  acceptor  had  the  whole  day;  but 
said,  if  there  were  any  difference 
between  bills  of  exchange  and  other 
contracts  in  this  respect,  the  claim 
of  the  notary  could  not  be  sup- 
ported, this  being  an  inland  bill 
l^ayable  fourteen  days  after  sight, 
and  the  statute  of  William,  which 
first  authorized  a  protest  upon  in- 
land bills,  giving  it  only  upon  such 
bills  as  were  payable  a  certain  num- 
ber of  days  after  date.  Upon  this 
last  ground  Buller,  J.,  concurred; 
but  he  added:  '  I  cannot  refrain  from. 
expressing  my  dissent  to  what  has 
fallen  from  my  lord  respecting  the 
time  when  the  payment  of  bills  of 
exchange  may  be  enforced.  One  of 
the  plaintiff's  counsel  has  correctly 
stated  the  nature  of  the  acceptor's 
undertaking,  which  is  to  pay  the 
bill  on  demand  on  any  part  of  the 
third  day  of  grace;  and  that  rule  is 
now  so  well  established  that  it  will 
be  extremely  dangerous  to  depart 
from  it.  With  regard  to  foreign 
bills  of  exchange,  all  the  books 
agree  that  the  protest  must  be  made 
on  the  last  day  of  grace ;  now  that 
supposes  a  default  in  payment,  for  a 
protest  cannot  exist  unless  default 
be  made.  But  if  the  party  has  until 
the  last  moment  of  the  day  to  pay 
the  bill,  the  protest  cannot  be  made 
on  that  day.  Therefore  the  usage 
on  bills  of  exchange  is  established; 
they  are  payable  any  time  on  the 
last  day  of  grace,  on  demand,  pro- 
vided that  demand  be  made  within 


TENDER. 


447 


has  gone  to  bed,  and  declines  to  consider  the  tender  on  that 
ground,  "where  no  cause  for  so  delaying  it  exists.^ 

Commercial  paper,  being  payable  on  the  day  of  maturity 
at  any  reasonable  hour  when  demanded,  a  breach  of  the  con- 
tract to  pay  may  occur  whenever  such  demand  is  made.  In  the 
absence,  however,  of  any  demand,  the  debtor  upon  such  paper 
undoubtedly  has  the  same  time  on  the  last  day  to  fulfil  his 
promise,  as  when  he  is  indebted  in  any  other  form.^ 

Iisr  WHAT  MOXET. —  The  offer  must  be  made  in  the  legal  tender 
money  of  the  country,  if  objection  is  made.* 

But  where  bank  or  treasury  notes  are  offered  which  circulate 
as  money,  though  not  made  a  legal  tender,  the  objection  that 
it  is  not  legal  tender  money  is  deemed  an  objection  of  form, 
and  waived  if  not  specially  made,  or  if  objection  on  some  other 
ground  is  made ;  *  for  to  invahdate  a  tender,  or  to  divest  an  offer 


reasonable  hours.  A  demand  at  a 
very  early  hour  of  the  day,  at  two 
or  three  o'clock  in  the  morning, 
would  be  at  an  unreasonable  hour; 
but,  on  the  other  hand,  to  say  that 
the  demand  should  be  postponed 
until  midnight,  would  be  to  estab- 
lish a  rule  attended  with  mis- 
chievous consequences.'  Uioon  con- 
sideration we  adopt  the  views  of 
]Mr.  Justice  Buller;  and  it  is  our 
opinion  that  bills  of  exchange  and 
negotiable  notes  should  be  paid  on 
demand,  if  made  at  a  reasonable 
hour,  on  the  day  they  fall  due;  and 
if  not  then  paid,  that  the  acceptor 
or  maker  may  be  sued  on  that  day, 
and  the  indorser  and  drawer  also, 
after  notice  given  or  duly  for- 
warded." Shed  V.  Britt,  1  Pick.  401, 
City  Bank  v.  Cutler,  3  Pick.  414. 
lid. 

2  Sweet  V.  Harding,  19  Vt.  587. 

3  Wharton  v.  Morris,  1  Dall.  124; 
Wood  V.  Mahm-in,  4  N.  H.  296;  Lee 
V.  Biddle,  1  Dall.  175;  Long  v.  Wat- 
ers, 47  Ala.  624:  Hollowell  v.  How- 
ard, 13  Mass.  235;  Lange  v.  Koline, 
1  McCord,  115;   Smith  v.  Keels,  15  > 


Rich.  (S.  C.)  318;  Magraw  v.  Mc- 
Glynn,  26  Cal.  420.  See  Tate  v. 
Smith,  70  N.  C.  685;  Graves  v.  Har- 
desty,  19  La.  Ann.  186;  Parker  v. 
Brown,  20  La.  Ann.  167;  Harris  v. 
Jex,  55  X.  Y.  421. 

4Cooley  V.  AVeeks.  10  Yerg,  141; 
BaU  V.  Stanley,  5  Yerg,  199;  Fos- 
dick  V.  Van  Husan,  21  Mich.  567; 
Curtiss  V.  Greenbanks,  24  Vt.  536; 
Warren  V.  Main,  7  John.  476;  Holmes 
V.  Holmes,  12  Barb.  137;  Wheeler  v. 
Knaggs,  8  Ohio,  172;  Lockyer  v. 
Jones,  Peake,  180,  n;  Wright  v.  Read, 
3  T.  R.  554;  Brown  v.  Saul,  4  Esp. 
267;  Polglass  v.  Oliver,  2  C.  &  J.  15; 
Tilley  v.  Courtier,  2  C.  &  J.  16,  n; 
Saunders  v.  Graham,  Gow.  Ill; 
Brown  v.  Dysinger,  1  Rawle,  408; 
Snow  V.  Perry,  9  Pick.  542;  Touzen 
V.  Havre  de  Grace  Bank,  6  Harris  & 
J.  53;  Willams  v.  Rono,  7  Mo.  555; 
Seawell  v.  Hemy,  6  Ala.  226;  Noe  v. 
Hodges,  3  Humph.  162;  Cummings 
V.  Putnam,  19  N.  H.  569;  Brown  v. 
Simons,  44  X.  H.  475;  Ball  v.  Stanley, 
5  Yerg.  199;  Cooley  v.  Weeks,  10  id. 
141;  Snow  v.  Perry,  9  Pick.  539. 


448  CONVENTIONAL   LIQUIDATIONS    AND   DISCHARGES. 

to  pay  of  the  legal  effect  of  a  tender,  if  the  objection  is  to  the 
medium  or  currency,  and  not  to  the  sum  offered,  the  ground  of 
the  objection  must  be  stated,  or  the  objection  in  that  respect 
will  be  waived,  and  it  cannot  afterwards  be  taken  advantage  of 
in  court  on  the  score  of  not  being  an  effective  legal  tender ;  in 
other  words,  an  objection  on  a  point  of  fact  works  a  waiver  of 
objection  on  points  of  law.^  It  is  a  general  rule  that  if  a  tender 
is  refused  on  a  specified  ground  of  objection,  no  other  can  after- 
wards be  relied  upon.^  This  applies,  however,  only  to  such  ob- 
jections as  could  be  obviated,  and  would  not  apply  to  a  tender 
made  before  a  debt  is  due.^ 

An  offer  of  depreciated  bank  notes  without  any  explanation, 
is  in  legal  effect  but  an  offer  of  compromise  or  of  accord  and 
satisfaction,  and  is  not  a  legal  tender.*  Even  a  check  for  money 
sent  by  a  letter  is  a  good  tender,  where  no  objection  is  made  on 
that  ground,  but  only  to  the  amount.^  But  when  the  party  en- 
titled to  payment  is  not  present,  and  has  no  opportunity  to  urge 
the  objection,  he  cannot  be  presumed  to  have  waived  it  by  his 
silence.^  A  note  for  dollars  payable  in  gold  and  silver  is  pay- 
able in  money,  and  neither  bullion,  nor  gold  and  silver  in  any 
other  form  than  money,  is  a  legal  tender.^ 

Br  WHOM. —  Of  course,  it  may  be  made  by  an  authorized 
agent.^  Where  the  tender  is  made  in  behalf  of  the  debtor, 
strict  authority  at  the  time  does  not  seem  to  be  requisite ;  it 
being  for  the  benefit  of  the  debtor,  and  in  his  name,  it  may  be 
effectual  without  such  agency  as  would  enable  the  person 

1  Polglass  V.  Oliver,  2  C.  &  J.  15.         3  Mitchell  v.  Cook,  29  Barb.  243. 

2  In  Moynehan  v.  Moore,  9  Mich.  ^  Newberry  v.  Trowbridge,  13 
•9,  it  was  said  to  be  "  a  well  established     Mich.  263. 

principle,  that  an  objection  made  at  ^  Jennings  v.  Mendenhall,  7  Ohio 

the  time    of    tender    precludes    all  St.  258:  Jones  v.  Arthur,  8  Dowl.  P. 

others,    and    if    that    be    not  well  C.  442;  Shipp  v.  Stacker,  8  Mo.  145; 

grounded,   the  tender  will  be  held  Pelter  v.  Smith,  1  Bay,  115. 

good."     See  Perkins  v.   Dunlop,  5  6  sioan  v.  Petrie,  16  111.262;  Hub- 

Oreenlf.  268,  271;   Hall  v.  Peters,  7  bard  v.  Clienango  Bank,  8  Cow.  89; 

Barb.  331;  Wright  v.  Reed,  3  Tenn.  Ward  v.  Smith,  7  Wall.  447. 

554;  Carmen  v.  Pultz,  21  N.  Y.  547;  ">  Hart  v.  Flynn's  Ex'r,    8    Dana, 

Bull  V.  Parker,  2  D.  U.  S.  345;  Keller  190. 

V.  Fisher,  7  Ind.  718;  Stokes  v.  Reck-  8  Eslow  v.  Mitchell,  26  Mich.  500. 

nagle,  38  N.  Y.  Sup.  Co.  368. 


TENDER. 


U9 


making  the  tender  to  do  any  act  which  would  bind  the  debtor. 
Thus  a  tender  made  for  an  infant  by  his  uncle  has  been  held 
good,  though  not  at  the  time  his  guardian.^  So  when  an  agent 
was  sent  to  tender  a  sum  less  than  that  demanded,  and  he 
added  of  his  own  funds  to  the  sum  furnished  by  his  principal, 
and  tendered  the  full  amount  demanded,  it  was  held  good.^  A 
tender  made  by  an  inhabitant  of  a  school  district  to  one  having 
a  claim  against  it,  was  held  good,  though  such  inhabitant  was 
not  regularly  authorized  by  the  district  to  do  so.^  A  corpora- 
tion appointed  three  agents  to  tender  a  certain  sum  to  B,  and 
obtain  from  him  a  reconveyance  of  a  certain  estate  conveyed  to 
him  by  the  corporation  as  security  for  a  debt ;  one  of  the  three 
made  the  tender,  and  it  was  held  good.*  A  person  having  no 
interest  in  the  tender  has  no  right  to  make  it  in  his  own  behj:Llf  .* 
He  should  make  it  in  behalf  of  the  debtor,  and  so  inform  the 
creditor.''  The  creditor  must  object  on  the  ground  of  a  want 
of  authority,  or  the  objection  is  waived.^  If  it  is  made  by  the 
debtor's  prior  authority,  or  is  subsequently  ratified,  it  is  good.^ 
Any  person  may  make  a  tender  for  an  idiot.^ 

To  WHOM. —  A  tender  should,  in  general,  be  made  direct  to 
the  creditor.^"  But  it  may  also  be  made  to  his  attorney  ^^  or 
authorized  agent,^-  although  such  attorney  falsely  denies  his 
authority,^^  or  such  agent  has  received  instructions  not  to  receive 
it.^*  An  attorney  having  a  demand  for  collection,  wrote  the 
debtor  requesting  him  to  pay  such  demand  at  the  attorney's  office ; 
the  debtor  subsequently  made  a  tender,  in  the  absence  of  the 

1  Brown  v,  Dysinger,  1  Rawle,  403.  9  Co.  Litt.  2066;  Brown  v.  Dy- 
See  Coke  Litt.  2066.  singer,  1  Rawle,  408. 

2  Read  v.  Golding,  2  M.  &  S.  86.  lo  Hornby  v.   Cramer,  12  How.  Pr. 

3  Kincaid  v.  School  Dist.  11  Me.  158.      490;  Smith  v.  Smith,  2  Hill,  351. 
*St.  Paul  Division  v.  Brown,   11         n  Billiot  v.  Robinson,  13  La.  Ann. 

IVHnn.  556.  529;  Wilmot  v.  Smith,  3  C.  &  P.  453. 

5  Maliler  v.  Newbaur,  22  Cal.  168.  12  Hargons  v.  Lahens,  3  Sandf.  213; 

'•Id.;   McDougald  v.  Doughty,  11  Goodland  v.  Blewith,  1  Camp.  477; 

Ga.  570.  Anon.  1  Esp.  349. 

7 Lumpley  v.  Weed,  27  Ala.  621.  i^  Mclniffe  v. Wheelock,  1  Gray,600. 

8  Harding  v.  Dain,  3  C.  &  P.  78;  ^Moffatt  v.  Parsons,  1  Marsh.  55; 

Mclniffe  v.  "Wheelock,  1  Gray,  600;  S.  C.  5  Taunt.  307. 
Eslow  V.  Mitcliell,  26  Mich.  500. 
Vol.  1  —  29 


450  CONVENTIONAL    LIQUIDATIONS   AND   DISCHARGES. 

attorney,  to  Ms  clerk  in  his  office,  and  it  was  held  good.^  Such 
a  request  of  payment  gives  the  debtor  aright  to  treat  any  person 
having  charge  of  such  office  in  the  absence  of  the  attorney  as 
authorized  to  receive  the  nioney.^  But  a  letter  from  the  attorney, 
demanding  payment  to  him  instead  of  at  his  office,  will  not 
warrant  a  tender  to  a  writing  clerk  in  his  office,  who  disclaims 
and  has  not  authority  to  receive  it.^ 

When  an  instrument  is  payable  at  a  bank,  and  is  lodged  there 
for  collection,  the  bank  becomes  the  agent  of  the  payee  to 
receive  payment.  The  agency  extends  no  further,  and  without 
special  authority  such  agent  can  only  receive  payment  of  the 
debt  due  his  principal  in  the  legal  currency  of  the  country,  or  in 
bills  which  pass  as  money  at  theii-  par  value  by  the  common 
consent  of  the  community.*  A  tender  may  be  made  to  a  clerk 
iii  a  store  for  goods  there  purchased,  and  it  will  be  equivalent  to 
a  tender  made  to  the  principal,  even  though  prior  thereto  the 
claim  have  been  lodged  with  an  attorney  for  suit.  Such  clerk 
can  also  waive,  either  by  implication  or  expressly,  any  objection, 
to  the  validity  of  the  tender,  on  the  ground  of  its  being  bank 
bills  and  not  specie.^  AYhere  there  is  no  general  agency  to 
collect,  but  power  simply  to  receive  the  sum  demanded,  a  tender 
of  a  less  sum  to  such  special  agent  is  invalid;  as  where  the 
plaintiff  sent  his  son  to  demand  a  specific  sum  for  an  unhquidated 
claim,  it  was  held  that  an  offer  to  him  of  a  less  sum  could  not 
be  considered  as  a  tender  to  the  plaintiff.^  Where  an  agent  of 
the  defendants  had  been  notified  not  to  receive  a  tender,  but  to 
refer  the  plaintiff  to  a  third  person  named,  of  which  the  plaintiff 
had  notice,  the  plaintiff  was  at  hberty  to  seek  the  person  to 
whom  he  had  been  so  referred  or  the  defendants,  at  his  election, 
and  could  make  the  tender  to  either.^ 

1  Wilmot  V.  Smith,  3  C.  &  P.  453;  is  brought,  is  unavailing;  if  made 
Kerton  v.  Braithwaite,  1  M.  &  W,  after  suit  is  commeuced,  the  costs 
310.  must  be  tendered.  Thurston  v.  Blais- 

2  Watson  V.  Hethcrington,  1  C.  &  daU,  8  N.  H.  367. 

K.  36.  4  Ward  v.  Smith,  7  Wall.  447. 

3 Id.;  Bingham  v.  AUport,  1  N.  &  ^Hoyt  v.  Byrnes,  11  Me.  475. 

M.  398.  In  New  Hampshire,  a  tender  6  Chipman  v.  Bailey,  5  Vt.  143. 

to  an  attorney  with  whom  a  demand  7  Hoyt  v.  Hall,  3  Bosw.  43. 
is  lodged  for  collection,  before  suit 


TENDER. 


451 


Money  due  to  a  cestui  que  trust  should  be  tendered  to  the  trustee.^ 
But  a  tender  to  an  executor,  while  in  another  state,  before  he 
had  acted,  or  was  qualified,  will  not  stop  interest.^  If  a  tender 
is  made  to  a  clerk,  agent,  or  other  representative  of  the  creditor, 
it  must  be  shown  that  he  had  authority  to  receive  the  money.^ 
If  no  place  has  been  appointed  for  papnent,  a  tender  to  the  cred- 
itor wherever  he  may  be  found  is  good.*  A  debt  due  jointly  to 
several  persons  may  be  tendered  to  either,  but  should  be  pleaded 
as  tendered  to  aU.* 

It  isiusT  BE  SUFFICIENT  IN  A^iouNT. —  The  tender  must  include 
the  fuU  amount  due.  A  tender  of  part  of  a  debt  is  inoperative.^ 
A  creditor  is  not  obliged  to  receive  part  of  his  debt.  The  debtor 
must  take  care  at  his  peril  to  tender  enough ;  for  if  his  tender  is 
less,  it  wiU  be  of  no  avail,  though  the  deficiency  is  small,  and 
occurred  by  mistake.''    But  this  rule  does  not  require  the  debtor 


1  Chahoon  v,  Hollenback,  16  S.  & 
R.  425;  Cook  v.  KeUy,  9  Bosw.   358. 

2  Todd  V.  Parker,  1  New,  J.  L.  45. 
3Hargons  v.  Lahens,  3  Sandf.  213; 

Goodland  v.  Blewitli,  1  Camp.  477; 
Anon.  1  Esp.  349. 

^Blingerland  v.  Morse,  8  John. 
474;  Hunter  v.  Le  Coute,  6  Cow.  228. 

5  Douglas  V  Patrick,  3  T.  R.  68; 
Southard  v.  Pope,  9  B.  Mon.  264; 
Beebe  v.  Knapp,  28  Mich.  5.  See 
Dawson  v.  Erwing,  16  S.  &  R.  371. 

6  Dixon  vf  Clark,  5  C.  B.  365;  Baker 
V.  Gasque,  3  Strobh.  25 ;  Putnale  v. 
Sanders,  41  Yt.  66;  and  Boyden  v. 
Moore,  5  Mass.  365.  In  this  case 
Parsons,  C.  J.,  said:  "It  is  a  well 
known  iide  that  the  defendant  must 
take  care  at  his  peril  to  tender 
enough;  and  if  he  does  not,  and  if 
the  plaintiff  replies  that  there  is 
more  due  than  is  tendered,  which  is 
traversed,  the  issue  will  be  against 
the  defendant,  and  it  will  be  the 
duty  of  the  jury  to  assess  for  the 
plaintiff  the  amount  due  on  the 
promise;  and  if  not  covered  by  the 
money  tendered,  he  wUl  have  judg- 
ment for  the  balance.     ...     In 


calculating,  there  may  be,  and  prob- 
ably must  arise,  fractions  not  to  be 
expressed  in  the  legal  money  of  ac- 
count; these  fractions  are  trifles,  and 
may  be  rejected.  ...  If  any 
sum  large  enough  to  be  discharged 
in  the  current  coin  of  the  country  is 
a  trifle,  which,  although  due,  the 
jury  are  not  obliged  to  award  to  the 
plaintiff,  the  creditor,  it  will  be  dif- 
ficult to  draw  a  line,  and  say  how 
large  a  sum  must  be  not  to  be  a 
trifle.  The  law  fixes  no  such  rule." 
■^  Id. ;  Helphrey  v.  Cliicago,  etc.  R. 
R.  Co.  29  Iowa.  480.  In  Harris  v. 
Jex,  55  N.  Y.  421,  a  tender  was  made 
upon  a  debt  contracted  prior  to  the 
passage  of  the  legal  tender  law  of 
1862;  and  this  tender  was  made  in 
legal  tender  notes,  after  the  decision 
in  Hepburn  v.  Griswold,  8  Wall. 
605,  and  before  the  reversal  of  that 
case  in  Knox  v.  Lee,  12  Wall.  457;  it 
was  refused  because  it  was  not  the 
currency  payable.  And  it  was  held 
that  the  plaintiff  was  justified  in  re- 
fusing the  tender;  he  had  a  right  to 
refuse  on  the  decision  of  the  highest 
judicial  tribunal  in  the  land;  that 


452 


CONVENTIONAL   LIQUIDATIONS    AND    DISCHARGES. 


to  tender  a  sum  to  cover  all  demands  his  creditor  may  have 
ao-ainst  him.  He  may  tender  for  the  payment  of  any  one  of  sev- 
eral debts  which  is  distinct  and  separable.^  A  tender  of  a  gross 
sum  upon  several  demands,  without  designating  the  amount  ten- 
dered upon  each,  is  sufficient.^  Where,  however,  there  are  sev- 
eral separate  demands  sued  for,  and  there  has  been  a  tender  made 
of  a  less  sum  than  the  amount  demanded  for  the  w^hole,  but  not 
specifically  applied  to  any  separable  portion  of  it,  it  has  been 
held  that  it  cannot  be  applied  in  pleading  to  either.^ 

A  tender  of  the  amount  justly  due  by  the  condition  of  a  bond, 
is  good,  although  less  than  the  penalty.*  The  penalty  is  only 
nominally  the  debt,  and  the  tender  of  that  sum,  which  if  paid 
would  satisfy  the  bond,  will  be  effectual  as  a  tender.^ 

A  tender  is  not  invalidated  by  being  of  a  larger  sum  than  the 
amount  it  is  offered  to  pay  or  is  demanded,  even  though  change 
is  requested,  unless  objection  is  made  to  it  on  that  account.^ 


decision,  for  the  time  being,  was  the 
law,  and  not  mei-ely  the  evidence  of 
it;  but  it  was  intimated  that  if  the 
tender  had  been  kept  good  it  would 
have  been  a  defense  to  interest  and 
costs,  after  the  decision  of  Knox  v. 
Lee. 

1 2  Par.  on  Cont.  641. 

2Thetford  v.  Hubbard,  22  Vt.  440. 

3Hardingham  v.  Allen,  57  Eng. 
C.  L.  793.  If  A,  B  and  C  have  a 
joint  demand,  and  C  has  a  separate 
demand  against  D,  and  D  offers  A  to 
pay  him  both  the  debts,  which  A  re- 
fuses, without  objecting  to  the  form 
of  the  tender,  on  account  of  being 
entitled  only  to  the  joint  demand,  D 
may  plead  this  tender  in  bar  of  an 
action  on  the  joint  demand,  and 
should  state  it  as  a  tender  to  A,  B 
and  C.  Douglass  v.  Patrick,  3  T.  R. 
683,  — but  see  Strong  v.  Howey,  3 
Bing.  304,  where  it  is  held  that  if  a 
party  has  separate  demands  for  un- 
equal sums  against  several  persons, 
an  offer  of  one  sum  for  the  debts  of 
all  will  not  support  a  plea,  stating 
that  a  certain  portion  of  this  sum 


was  tendered  for  the  debt  of  one.  It 
was  held  in  Hampshire  Manuf'g  Co. 
Bank  v.  Billing,  17  Pick.  89,  that  a 
tender  of  the  amount  due  on  a  joint 
and  several  promissory  note  by  a 
surety,  while  an  action  brought  by  a 
holder  against  the  principal  was 
pending,  will  not  discharge  the 
surety  from  his  liability,  unless  he 
offers  to  indemnify  the  holder 
against  costs  of  such  action. 
i  Tracy  v.  Strong,  2  Conn.  659. 

5  See  Frazer  v.  Little,  13  Mich.  195; 
Spencer  v.  Perry,  18  Mich.  394. 

6  In  Dean  v.  James,  4  B.  &  Ad. 
546,  it  was  held  that  a  tender  of  20Z. 
9s.  Qd.  in  bank  notes  is  sufficient  to 
support  a  plea  of  tender  of  20?. 
Taunton,  J.,  referring  to  Watkins  v. 
Robb,  2  Esp.  N.  P.  C.  710,  said: 
"  There  the  defendant  tendered  a  51. 
note  and  demanded  6cZ.  change, 
which  the  defendant  was  not  bound 
to  give."  Betterbee  v.  Davis,  8 
Camp.  71.  Littledale,  J.,  said: 
' '  Tliis  case  falls  within  the  third 
resolution  in  AVade's  Case,  5  Co.  115, 
that  if  a  man  tender  more  than  he 


TENDER. 


453 


•  The  creditor  is  entitled  to  payment  in  money  made  legal 
tender  by  law;  and  tlie  debtor  has  a  right  to  make  payment  in 
that  currency.  Debts  made  payable  in  the  denominations  of 
the  legal  tender  currency  are  solvable  in  that  currency  at  par, 
without  regard  to  ^vhen  or  where  the  debts  were  contracted,  or 
the  relative  value  of  the  denominations  in  that  currency,  at 


ought  to  pay,  it  is  good,  for  Omni 
inajus  continet  in  se  viinus,  and  the 
other  is  bound  to  accept  so  much  of 
it  as  is  due  to  him."  The  argument 
against  the  tender  was  that  a  subse- 
quent demand  must  be  of  the 
specific  sum  tendered,  and  if  that 
sum  is  more  than  tiie  plaintiffs  de- 
mand, it  would  be  inapplicable. 
Referring  to  this,  Littledale,  J., 
continues:  "As  to  replying  a  de- 
mand, it  is  not  the  plaintiffs  busi- 
ness to  demand  more  than  is  actually 
due;  it  is  enough  if,  in  his  replica- 
tion, he  admits  that  the  sum  due 
was  tendered,  but  alleges  that  he 
afterwards  demanded  that,  and  it 
was  refused." 

Lord  Abinger  said,  in  Bevans  v. 
Rees,  5  M.  &  W.  306:  "lam  pre- 
pared to  say  that  if  the  creditor 
knows  the  amount  due  to  him,  and 
is  offered  a  lai-ger  sum,  and  without 
any  objection  of  a  want  of  change, 
makes  quite  a  collateral  objection, 
that  will  be  a  good  tender."  Block 
V.  Smith,  Peake,  88;  Cadman  v. 
Lubbuck,  5  D.  &  Ry.  384;  Hubbard 
V.  Chenango  Bank,  8  Cow.  89;  Pat- 
terson V.  Cox,  25  Ind.  261;  Douglas 
V.  Patrick,  3  T.  R.  683;  Dean  v. 
James,  4  B.  &  Ad.  546;  Astley  v, 
Reynolds,  2  Str.  916;  Strong  v. 
HaAvley,  8  Bing.  304;  Robinson  v. 
Cook,  6  Taunt.  386;  Blow  v.  RusseU, 
1  C.  &  R.  365. 

Cadman  v.  Lubbuck,  5  D.  &  R. 
280.  Where  the  defendant,  who 
owed  the  plaintiff  108Z.  for  principal 
and  interest  on  two  promissoiy 
notes,  in  consequence  of  an  applica- 


tion from  the  plaintiffs  attorney  for 
the  amount,  sent  a  person  to  the  at- 
torney, who  told  such  attorney  that 
he  came  to  settle  the  amount  due  on 
the  notes,  and  desired  to  be  in- 
formed what  was  due,  and  laid 
down  150  sovereigns  on  a  desk,  out 
of  which  he  desired  the  attorney  to 
take  what  was  due  for  such  prin- 
cipal and  interest,  but  the  attorney 
refused  to  do  so,  unless  a  shop  ac- 
count due  from  the  plaintiff  to  the 
defendant  was  fixed  at  a  certain 
amount,  held  to  be  a  good  tender. 
Bevans  v.  Rees,  5  M.  &  W.  306.  A 
tender  has  been  held  vitiated  by  de- 
livering a  counterclaim  at  the  same 
time.  Thus,  where  a  defendant 
tendered  seven  sovereigns  in  pay- 
ment of  a  demand  of  6Z.  17s.  6(:L,  and 
said  to  the  plaintiff,  "There,  take 
your  demand,"  and  at  the  same  time 
delivered  a  counterclaim  upon  the 
plaintiff  of  11.  5s.,  who  said  you 
must  go  to  my  attorney:  Held,  not 
a  good  tender  to  an  action  for  the 
6Z.  17s.  M.  Brady  v.  Jones,  2  D.  & 
R.  305;  and  see  Holland  v.  Phillips, 
6  Esp.  4.  See  also  Laing  v.  Header, 
1  C.  &  P.  257.  In  Sanders  v.  Frost, 
5  Pick.  259,  269,  there  was  a  tender 
of  a  mortgage  debt  which  was  not 
due,  and  bearing  interest,  and  of 
which  only  interest  was  due.  Ob- 
jection Avas  made  by  counsel  that 
the  tender  was  made  of  a  debt  not 
due.  The  tender  was  of  a  sum  equal 
to  the  interest  and  the  principal. 
Parker,  C.  J.,  said:  "  But  it  appears 
to  us  that,  in  order  to  avail  himself 
of    this    objection,    the    defendant 


454 


CONVENTIONAL    LIQUIDATIONS    AND   DISCHARGES. 


and  after  the  contract  was  made.  The  legal  tender  cuiTency 
for  the  time  being,  when  the  contract  is  performed  or  enforced, 
is  the  currency  applicable  to  it.^ 

If  money  be  payable  in  the  legal  currency  of  another  coun- 
try, the  legal  rather  than  the  market  equivalent  is  the  amount 
to  be  paid.  A  contract  to  pay  in  "  dollars  "  may  require  pay- 
ment in  either  legal  tender  currency  provided  by  the  govern- 
ment, according  to  the  intention  of  the  parties.  Treasury  notes, 
commonly  called  "  greenbacks,"  are  the  currency  payable,  un- 
less the  contract  itself  indicates  the  intention  that  the  debt 
be  paid  in  coin.^  A  contract  to  pay  in  "  dollars  "  in  gold  and 
silver  is  a  contract  for  the  du'ect  payment  of  money.  Neither 
"bullion,  gold  dust,  gold  and  silver  bars,  old  spoons  and  rings, 
are  a  proper  tender  in  satisfaction.^  But  current  bank  notes, 
which  pass  as  money,  offered  in  payment,  and  not  objected  to  on 
that  ground,  will  constitute  a  good  tender.^ 

When  a  debtor  tenders  a  bank  check  in  payment  of  a  debt, 
and  the  creditor  expressly  waives  all  objection  to  that  mode  of 
payment,  and  only  objects  to  the  amount,  it  is  good.^    Where  a 


ought  to  have  sliown  a  wiUingness 
to  take  what  was  due,  and  to  have 
stated  that  he  claimed  to  hold  pos- 
session only  for  the  non-payment  of 
interest."  Odem  v.  Carter,  36  Tex. 
281. 

1  Story  on  Prom.  Notes,  §  390  and 
note;  George  v.  Boncord,  45  N.  H. 
434;  Wood  v.  Bullens,  6  Allen,  516; 
Pong  V.  De  Lindsey,  Dyer,  82rt; 
Dooley  v.  Smitli,  13  Wall.  604; 
Legal  Tender  Cases,  12  Wall.  457; 
Trebilcock  v.  Wilson,  12  Wall.  687; 
Verges  v.  Golden,  38  Mo.  458;  Marri- 
bold  V.  Sclilecting,  16  Iowa,  243; 
Murray  v.  Harrison,  47  Barb.  484; 
Wilson  V.  Morgan,  4Robt.  58;  Strong 
V.  Farmers',  etc.  Bank,  4  Mich.  350; 
Smith  V.  Keels,  15  Pick.  318;  Wills 
V.  Allison,  4  Heisk.  385;  Bond  v. 
Griswold,  id.  453;  Caldwell  v.  Craig, 
22  Gratt.  340. 

2  Trebilcock  v.  Wilson,  12  Wall. 
687. 


3  Hart  V.  Flynn,  8  Dana,  190.  See 
Lang  V.  Watson,  47  Ala.  624;  Mc- 
Cune  V.  Erfort,  43  Mo.  134. 

*  Brown  v.  Simons,  44  N.  H.  475; 
Ball  V.  Stanley,  5  Yerg.  199;  Noe  v. 
Ilodges,  3  Humph.  162;  Seawell  v. 
Henry,  Q  Ala.  226;  Cummings  v. 
Putnam,  19  N.  H.  569;  Williams 
V.  Rorr,  7  Mo.  556;  Cooley  v.  Weeks, 
10  Yerg.  141;  Snow  v.  Perry,  9  Pick. 
539;  Wlieeler  v.  Knaggs,  8  Ohio, 
169;  Fosdick  v.  Van  Huson,  21  Mich. 
567;  Curtiss  v.  Greenbanks,  24  Vt. 
536;  Petrie  v.  Smith,  1  Bay,  115; 
Brown  v.  Dysinger,  1  Rawle,  408. 
See  Ward  v.  Smith,  7  Wall.  447. 

5  Jennings  v,  Mendenhall,  7  Ohio 
St.  258.  The  court  say  in  this  case: 
"On  a  somewhat  extensive  exami- 
nation of  the  cases,  it  seems  to  us  that 
mere  silence  is  held  to  be  a  waiver 
of  objection  in  the  case  of  current 
bank  notes,  for  the  reason  that  they 
constitute  the  common  currency  of 


TENDEK. 


455 


note  is  payable  to  a  bank  in  which  the  debtor  has  a  deposit,  his 
check  on  such  banlv  is  a  good  tender ;  ^  but  a  note  or  other  obli- 
gation of  the  creditor  is  not  legal  tender.  A  tender  for  part  of 
an  entire  demand,  and  set-off  for  the  residue,  cannot  be  pleaded.^ 

How  TENDER  MUST  BE  MADE. —  As  a  general  rule,  the  money 
must  be  actually  produced  and  placed  within  the  power  of  the 
creditor  to  receive  it,  unless  the  creditor  dispense  with  the 
production  by  express  declaration  or  other  equivalent  act.'  A 
mere  verbal  offer  to  pay  a  certain  sum  does  not  constitute  a 
tender.^  The  cases  concur  in  the  foregoing  rule  but  differ 
somewhat  in  its  application. 


the  country,  and  are  by  all  classes 
paid  out  and  received  as  money, 
which  is  a  reason  that  does  not  fully 
apply  to  bank  checks.  All  tlie  cases, 
however,  proceed  on  the  principle 
that  where  all  objection  to  the  pro- 
posed medium  of  payment  is 
waived,  the  tender  is  good,  though 
not  made  in  coin;  and  the  only  dif- 
ference between  them  is  on  the  ques- 
tion as  to  what  shall  be  held  to  be 
conclusive  of  such  waiver." 

iShiflf  v.  Stacker,  8  Mo.  145. 
"  Lawful  current  money  "  of  a  state 
is  construed  to  mean  money  issued 
by  congress.  Wharton  v.  Morris,  1 
Ball.  124:  McKora  v.  Ford,  3  T.  B. 
Mon.  166,  "  Current  lawful  money" 
is  the  same.  Lee  v.  Biddy,  1  Dall. 
175.  But  "  currency,"  where  bank 
notes  are  the  only  currency,  does 
not  mean  money.  McKora  v.  Ford, 
supra;  Lange  v.  Kohen,  1  McCord, 
45. 

A  tender  in  confederate  money  is 
not  good,  altliough  it  is  at  the  time 
the  circulating  currency  in  the  com- 
munity. Graves  v.  Hardesly,  19  La. 
Ann.  186.  See  Parker  v.  Broas,  20 
La.  Ann.  167;  but  see,  also,  Phillips 
V.  Gnston,  37  Ga.  16;  Tate  v.  Smith, 
70  N.  C.  685. 

*Cary  v.  Bancroft,  14  Pick.  815; 
Hallowell  &  Augusta  Bank  v.  How- 


ard, 13  Mass.   235;  Searles  v.  Sad- 
grave,  85  Eng.  C.  L.  639. 

3  Brown  v.  Gilmore,  8  Greenlf. 
107;  Ladd  v.  Potter,  1  Cranch  C.  C. 
263;  Thomas  v.  Evans,  10  East,  101; 
Labbrant  v.  Myron  Lodge,  61  111.  81; 
Dickinson  v.  Shed,  4  Esp.  68;  Walker 
V.  Brown,  12  La.  Ann.  266;  Sands  v. 
Lyon,  18  Conn.  18;  Strong  v.  Blake, 
46  Barb.  227;  Matheson  v.  Kelly,  24 
Upper  Canada  C.  P.  598;  Holmes  v. 
Holmes,  12  Barb.  137;  Bakeman  v. 
Pooler,  15  Wend.  637;  Breed  v. 
Hurd,  6  Pick.  356;  Gilmore  v.  Holt, 
4  Pick.  25;  Eastland  v.  Longshorn,  1 
Nott.  &  McC.  194;  Southworth  v. 
Smith,  7  Cush.  391;  Lahman  v. 
Crouch,  19  Gratt.  331;  Dunham 
V.  Jackson,  6  Wend.  22;  Mclntyre 
V.  Clark,  7  Wend.  330;  Sargent  v 
Graliam,  5  N.  H.  440.  See  Champion 
V.  Joslin,  44  N.  Y.  653;  see  also  Hill 
V.  Place,  5  Abb.  N.  S.  18;  S.  C.  7 
Robt.  389;  Borden  v.  Borden,  5  Mass. 
67;  SUngerland  v.  Morse,  8  John. 
474;  Blight  v.  Ashley,  1  Pet.  C.  C. 
15;  Thayer  V.  Brackett,  12  Mass.  450; 
Caiy  V.  Bancroft,  14  Pick.  315;  Bake- 
man V.  Pauler,  15  Wend.  637. 

*  Eastman  v.  Rapids,  21  Iowa,  590; 
Camp  V.  Simons,  34  Ala.  126;  Stert 
V.  Riggs,  22  lU.  643;  Hornby  v. 
Cramer,  12  How.  Pr.  490;  Sheridine 
V.  Gaul,  2  Dall.  190;  Bacon  v.  Smith, 


456 


CONVENTIONAL   LIQUIDATIONS    AND    DISCHAEGES. 


"Where  there  is  a  verbal  offer  of  a  particular  sum,  and  the 
creditor  insists  on  more  being  due  in  such  manner  as  amounts 
to  a  declaration  that  the  offered  sum  would  not  be  received,  the 
actual  production  of  the  money  is  not  necessary.^  The  imme- 
diate departure  of  the  creditor  on  such  a  verbal  offer  being 
made,  or  any  intentional  evasion  of  the  debtor,  would  seem  to  be 
equivalent  to  an  express  refusal  of  the  offer,  and  equally  to 
excuse  the  production  of  the  money.^  So  on  a  verbal  offer  of 
a  specified  sum  in  legal  tender  notes  in  which  the  debt  might  be 
paid,  a  declaration  by  the  creditor,  that  he  would  receive 
nothing  but  gold  or  silver,  would  dispense  with  the  actual 
production  of  the  offered  money.*  An  absolute  refusal  to  re- 
ceive the  money,  or,  in  case  of  mutual  executory  contracts,  to 
do  the  act  in  consideration  of  which  the  money  is  to  be  paid,  is 
a  waiver  of  production.'  But  the  debtor  must  have  the  money 
to  immediately  comply  with  his  offer ;  having  it  in  a  bag  is  no 
objection.* 


2  La.  Ann.  441 ;  Hunter  v.  Warner, 

1  Wis.  141.  See  Harris  v.  Wheelock, 
9  How.  Pr.  402;  HiU  v.  Place,  7  Robt. 
389. 

1  Black  V.  Smith,  Peake,  88;  Jack- 
son V.  Jacobs,  3  Bing.  N.  C.  869; 
Sands  v.  Lyon,  18  Conn.  18;  Reed  v. 
Goldring,  2  M.  &  S.  86;  Finch  v. 
Brook,  1  Scott,  70;  Danks,  Ex  parte, 

2  De  Gex,  M.  &  G.  936;  Dorsey  v. 
Barbee,  Litt.  Sel.  Cas.  204;  Murray  v. 
Roosevelt,  Anth.  N.  P.  138;  Vanpell 
V.  Woodward,  2  Sandf.  Ch.  143; 
Stone  V.  Sprague,  20  Barb.  509; 
Dana  v.  Fiedler,  1  E.  D.  Smith,  463; 
Slingerland  v.  Morse,  8  John.  474; 
Everett  V.  Saltus,15  Wend.  474;  War- 
ren V,  Mains,  7  John.  476;  State 
V.  Spicer,  4Houst.  (Del.)  100;  Hazard 
V.  Loring,  10  Cush.  267;  Strong  v. 
Blake,  46  Barb.  227;  Appleton  v. 
Donaldson,  3  Pa.  St.  381.  In  Dun- 
ham V.  Jackson,  6  Wend.  22,  it  was 
held  that  a  hesitating  refusal,  based 
on  a  claim  of  more  than  is  due,  will 
not  dispense  with  the  actual  pro- 
duction of  the  money.     Sargent  v. 


Graham,  5  N.  H.  440;  Harding  v. 
Davies,  2  C.  &  P.  77. 

2Gilmore  v.  Holt,  4  Pick.  257; 
Southworth  v.  Smith,  7  Cush.  391; 
Judson  V.  Ensign,  6  Barb.  258;  Hanbie 
V  Valkening,  49  How.  Pr.  169;  Sands 
V.  Lyon,  18  Conn.  18;  Rainey  v.  Jones, 
4  Humph.  490;  Little  v.  Nichols, 
Hard.  66;  Holmes  v.  Holmes,  12 
Barb.  137.  But  see  Leatherdale  v. 
Sweepstone,  3  C.  &  P.  342,  and 
Knight  V.  Abbot,  30  Vt.  577;  Thorn 
V.  Mosher,  30  N.  J.  Eq.  267. 

sHanna  v.  Rateker,  43  lU.  462; 
Hay  ward  v.  Munger,  14  Iowa,  516; 
Wyukoop  V.  Cowing,  21  lU.  570. 

4  Murray  v.  Roosevelt,  Anth.  N.  P. 
138;  Hazard  v.  Loring,  10  Cush.  267; 
Vanpell  v.  Woodward,  2  Sandf.  Ch. 
143;  Strong  v.  Blake,  46  Barb.  227; 
Stone  v.  Sprague,  20  Barb.  509;  Ap- 
pleton V.  Donaldson,  3  Pa.  St.  381; 
Dana  v.  Fiedler,  1  E.  D.  Smith,  463;. 
Slingerland  v.  Morse,  8  John.  474; 
Everett  v.  Saltus,  15  Wend.  474; 
Warner  v.  Mains,  7  John.  476. 

5  Conway  v.  Case,  22  111.  127;  Breed 


TENDER. 


457 


In  some  cases  it  is  held  that  such  a  refusal  will  not  dispense 
with  the  actual  production  of  the  money ;  that  there  must  be 
some  declaration  or  equivalent  act  to  the  effect  that  the  debtor 
need  not  offer  the  money.^  The  sight  of  the  money  may  tempt 
the  creditor  to  accept  it.^  The  question  whether  the  production 
has  been  dispensed  with  is  a  question  for  the  jury ;  and  if  they 
find  the  facts  specially  and  do  not  find  the  fact  of  dispensation, 
the  court  will  not  infer  it.^  The  money  must  be  actually  at 
hand  and  ready  to  be  produced  immediately,  if  it  should  be  ac- 
cepted. It  is  not  enough  that  a  third  person  has  the  money  on 
the  spot  which  he  would  loan,  unless  he  actually  consents  to 
loan  it  for  the  purpose  of  the  tender.'* 

At  an  interview  between  the  plaintiff  and  the  defendant  the 
defendant  was  willing  to  pay  £10,  and  a  third  person  offered  to 
go  up-stairs  and  fetch  that  sum,  but  was  prevented  by  the 
plaintiff  saying  "  he  cannot  take  it."  Such  offer  was  held  a 
good  tender.^    A  tender  made  by  holding  an  unstated  amount 


V.  Hurd,  6  Pick.  355;  Davis  v.  Stone- 
street,  4  Ind.  101 ;  Harding  v.  Davis, 
2  C.  &  P.  77;  Borden  v.  Borden,  5 
Mass.  67;  Sucklinge  v.  Coney,  Noy, 
74;  Behaley  v.  Hatch,  Walk.  (Miss.) 
369. 

'Thomas  v.  Evans,  10  East,  101; 
Douglas  v.  Patrick,  3  T.  R.  783;  Dick- 
inson V.  Hill,  4  Esp.  N.  P.  68;  Frinch 
v.  Brook,  1  Bing.  N.  C.  253;  Leatlier- 
dale  V.  Sweepstone,  3  C.  &  P.  343; 
Firth,v.  Purvis,  5  T.  R.  433;  Kraus 
V.  Arnold,  7  Moore,  59;  Brown  v. 
Gilmore,  8  Greenlf.  107;  Bakeman 
v.  Pooler,  15  Wend.  637. 

2  Frinch  v.  Brook,  supra. 

3 Id.;  2  Greenlf.  Ev.  §603. 

*  Sargent  v,  Graham,  5  N.  H.  440; 
Bakeman  v.  Pooler,  15  Wend.  637; 
Breed  v.  Hurd,  6  Pick.  356;  East- 
land V.  Longshorn,  1  Nott.  &  McC. 
194. 

5  Harding  v.  Davies,  3  C.  &  P.  77. 
But  in  Kraus  v.  Arnold,  7  Moore,  59, 
the  defendant  ordered  A  to  pay  the 
plaintiff  £7  13.5.,  and  the  clerk  of 
the  plaintiff  demanded  £8,  on  which 


A  said  he  was  only  ordered  to  i^ay 
£7  12s.,  whicli  sum  was  in  the  hands 
of  B,  and  B  put  his  hand  to  his 
pocket  with  a  view  to  pulling  out 
his  pocket-book  to  pay  £7  13s.,  but 
did  not  do  so,  by  the  desire  of  A; 
but  B  could  not  say  whether  he  had 
that  sum  about  him,  but  swore  he 
had  it  in  his  house,  at  the  door  of 
whicli  he  was  standing  at  the  time. 
Held,  not  a  legal  tender,  because  the 
money  was  not  produced. 

And  in  Glasscot  v.  Day,  5  Esp.  48, 
it  was  held  the  tender  was  not  good 
because  the  money  was  not  in  sight; 
the  witness  supposed  it  was  in  the 
desk,  but  never  saw  it  produced; 
and  it  did  not  appear  that  if  the 
creditor  hail  been  willing  to  accej^t 
the  money,  it  could  be  immediately 
paid;  the  money  should  be  at  hand 
and  capable  of  immediate  delivery. 
Also  in  Breed  v.  Hurd,  6  Pick.  356, 
a  witness  told  the  plaintiff  that  the 
defendant  had  left  money  with  him 
to  pay  the  plaintiff's  bill,  and  that  if 
the  plaintiff  would  make  it  right  by 


458 


CONVENTIONAL   LIQUIDATIONS    AND   DISCHAEGE8. 


in  hand,  peremptorily  rejected  without  inquuy  as  to  amount,  is 
good.^ 

If  a  debt  is  payable  at  a  particular  place,  the  creditor  has  a 
right  to  receive  the  money  at  that  place.^  AVhen  payable  at  a 
bank,  such  designation  of  place  imports  a  stipulation  that  the 
holder  will  have  the  instrument  on  which  the  money  is  payable 
at  the  bank  to  receive  payment,  and  that  the  debtor  will  have 
the  funds  there  to  pay  it ;  and  it  is  the  general  usage  in  such 
cases  to  lodge  the  instrument  with  the  bank  for  collection.  If 
the  instrument  be  not  there  lodged,  and  the  debtor  is  there  at 
maturity  with  the  necessary  funds  to  pay  it,  he  so  far  satisfies 
the  contract  that  he  cannot  be  made  responsible  for  any  future 
damages,  either  in  costs  of  suit  or  interest  for  the  delay.'  Hav- 
ing money,  however,  in  a  bank  w^here  a  note  is  payable  is  not  a 
tender  unless  in  some  way  appropriated  to  the  note.*  A  tender 
to  the  cashier  of  the  amount  of  a  note  payable  at  his  bank, 


dediicting  a  certain  sum,  he  would 
pay  it,  at  the  same  time  making  a 
motion  with  his  hand  towards  his 
desk,  at  which  he  was  then  stand- 
ing; he  swore  that  he  beheved,  but 
did  not  know,  that  thei'e  was  money 
enough  in  his  desk;  but  if  there  was 
not,  he  would  have  obtained  it  in 
five  minutes  if  the  plaintiff  would 
have  made  the  deduction;  but  the 
plaintiff  replied  that  he  would  de- 
duct nothing.     Held,  not  a  tender. 

1  State  V.  Spicer,  4  Houst.  (Del.) 
100.  It  appeared  in  tiiis  case  that 
the  parties  met,  and  the  debtor,  in 
his  wagon,  which  stopped  on  meet- 
ing the  creditor,  said,  "  I've  got  the 
money  to  pay  you,"  specifying  the 
claim,  and  put  his  hand  into  Ms 
pocket  to  take  out  the  bag  which 
contained  the  money;  while  he  was 
doing  tliis  the  creditor  said,  "  I  want 
nothing  to  do  with  such  a  cut-tlu'oat 
as  you,"  and  walked  rapidly  away. 
The  jury  found  that  the  debtor  was 
thereby  prevented  from  producing 
the  money  and  offering  it  to  the 
creditor,  and  held  a  good  tender. 


Sands  v.  Lyon,  18  Conn.  18.  See 
Knight  v.  Abbot,  30  Vt.  577.  In 
this  case  the  defendant,  desii'ing  to 
make  a  tender,  said  to  the  plaintiff 
as  lie  was  passing  in  a  wagon,  ' '  I 
want  to  tender  you  this  money  for 
labor  you  have  done  for  me,"  at  the 
same  time  holding  a  sum  of  money 
in  his  hand  equal  to  his  indebted- 
ness, but  not  mentioning  any  sum; 
the  plaintiff  did  not  reply,  nor  stop 
his  team.  Held,  not  a  good  tender. 
In  Thorn  v.  Mosher,  20  N.  J.  Eq. 
257,  A  offered  to  pay  money  to  B, 
holding  her  purse  in  her  hand  in 
sight  of  B,  who  saw  the  purse,  but 
not  the  bills.  A  opened  the  purse, 
and  was  in  the  act  of  taking  out  the 
bills,  but  stopped  on  account  of  the 
refusal  of  B  to  receive  the  money. 
Held,  that  the  offer  was  neither  pay- 
ment nor  tender,  but  the  refusal 
was  an  excuse  for  not  making  a 
tender. 

2  United     States     v.     Gurney,    4 
Cranch,  333. 

3  Ward  V.  Smith,  7  WaU.  447. 

4  Myers  v.  Byington,  34  Iowa,  205. 


TENDER. 


459 


coupled  with  a  demand  of  the  note,  is  not  good,  the  note  not 
being  there  at  the  time,  and  the  money  not  deposited  nor  after- 
wards offered.^ 

Where  no  place  of  payment  is  appointed  the  debt  is  payable 
everywhere ;  and  it  is  the  duty  of  the  debtor  to  seek  the  cred- 
itor, if  within  the  state.^ 

Must  be  tustconditional. —  A  tender  must  be  unconditional ; ' 
or  at  least  cannot  be  clogged  by  any  condition  to  which  the 
creditor  can  have  any  reasonable  objection;*  so  that  if  the 
creditor  takes  the  money,  and  there  is  more  due,  he  may  still 
bring  an  action  for  the  residue.^  An  offer  of  a  certain  sum  in 
full  of  a  demand  is  not  a  o-ood  tender.^    But  a  tender  is  not 


1  Bulwer  v.  Newburgli,  16  Minn. 
116;  HUl  V.  Place,  7  Robt.  389.  See 
Rowe  V.  Young,  2  Brod.  &  Bing. 
165;  Bacon  v.  Dyer,  13  Me.  19;  Wal- 
lace V.  McConnell,  13  Pet.  136. 

2  Little  V.  Nichols,  Hardin,  66; 
Hanbie  v,  Valkening,  49  How.  Pr. 
169;  Harris  v,  Mulock,  9  How.  Pr. 
403.  In  this  case  it  appeared  that 
the  creditor  went  to  the  debtor's  of- 
fice to  receive  payment.  While  in 
the  act  of  counting  one  of  several 
j)ackages  of  bank  bills  delivered  to 
liun  by  the  debtor  as  payment,  he 
suddenly  left  the  office  by  reason  of 
insulting  language  addressed  to  him 
by  the  debtor.  It  was  held  that 
the  money  not  being  current  coin,  it 
"would  not  be  a  tender  if  the  creditor 
objected  to  it  for  that  reason;  there- 
fore to  constitute  that  money  a  ten- 
der, the  debtor  was  obliged  to  give 
the  creditor  time  sufficient  to  ascer- 
tain whether  the  money  was  such  as 
he  would  be  willing  to  receive  in- 
stead of  coin;  and  the  creditor  hav- 
ing cause  to  leave  on  account  of  the 
insulting  language  before  such  ex- 
amination was  completed,  the  ten- 
der was  not  sufficient;  that  the 
debtor  must  seek  the  creditor  for 
that  purpose. 


3  Rose  V.  Duncan,  49  Ind.  269; 
Jennings  v.  Major,  8  C.  &  P.  61; 
Haltou  V.  Brown,  18  Vt.  324;  Wa- 
genblast  v.  McKean,  3  Grant's  Ca. 
(Pa.)  393;  Cothren  v.  Scanlan,  34 
Ga.  555;  Pulsifer  v.  Shephard,  36 
111.  513;  Shaw  v.  Sears,  3  Kan.  ^43; 
Hunter  v.  Wai'ner,  1  Wis.  141, 

-tBevans  v.  Rees,  5  M.  &  W.  306; 
Richardson  v.  Jackson,  8  M.  &  W. 
298;  Wheelock  v.  Tanner,  39  N.  Y. 
481;  Foster  v.  Drew,  39  Vt.  51;  Ded- 
ekam  v.  Vose,  3  Blatchf.  44.  See 
Moynahan  v,  Moore,  9  Mich.  9; 
Hepburn  v.  Auld,  1  Cranch,  321. 

5  Mitchell  V.  King,  6  C.  &  P.  337; 
Hartings  v.  Thorley,  8  C.  &  P.  573; 
Jennings  v.  Major,  8  C.  &  P.  61; 
Peacock  v.  Dickerson,  2  C.  &  P.  51,  n; 
Benkhard  v.  Babcock,  27  How.  Pr. 
391;  Henwood  v.  OUver,  1  G.  &  D. 
25;  1  Q.  B.  409;  Brown  v.  Owen,  11 
Q.  B.  130;  Wood  v.  Hitchcock,  30 
Wend.  47;  Loring  v  Cook,  3  Pick. 
48;  Roosevelt  v.  The  BuU's  Head 
Bank,  45  Barb.  579. 

6  Griffith  V.  Hodges,  1  C.  &  P.  419; 
Strong  V.  Harvey,  3  Bing.  304; 
Chemenant  v.  Thornton,  3  C.  &  P. 
50;  Thayer  v.  Brackett,  13  Mass. 
450;  Mitchell  v.  King,  6  C.  &  P. 
237;  Wood  v.  Hitchcock,  supra.     In 


460 


CONVENTIONAL    LIQUIDATIONS   AND   DISCHARGES. 


vitiated  by  being  an  offer  of  payment  under  protest.  If  tlie 
debtor  absolutely  offers  payment,  be  does  not  vitiate  the  offer 
by  protesting.^ 

There  have  been  some  intimations  that  even  asking  a  receipt 


this  case,  Cowen,  J.,  said:  "It  was 
clearly  a  tender  to  be  accepted  as 
the  whole  amount  due,  ^vhich  is 
hold  en  to  be  bad  by  all  the  books. 
The  tender  was  also  bad  because  the 
defendant  would  not  allow  that  he 
was  ever  liable  for  the  full  amount 
of  what  he  tendered.  His  act  was 
within  the  rule  which  says  he  shall 
not  make  a  protest  against  his  lia- 
bility. He  must  also  avoid  all  coun- 
terclaim, as  of  set-off  against  part  of 
the  debt  due.  That  this  defendant 
intended  to  impose  the  terms,  or 
raise  the  inference  that  the  accept- 
ance of  the  money  should  be  in  full, 
and  thus  conclude  the  plaintiff 
against  litigating  all  further  or  other 
claim,  the  referees  were  certainly 
entitled  to  say.  That  the  defendant 
intended  to  question  his  liability  to 
part  of  the  amount  tendered  is 
equally  obvious,  and  his  object  was 
at  the  same  time  to  adjust  his  coun- 
terclaim. It  is  not  of  the  nature  of 
a  tender  to  make  conditions,  but 
simply  to  pay  the  sum  tendered,  as 
for  an  admitted  debt.  Interlaiding 
any  other  object  will  always  defeat 
the  effect  of  the  act  as  a  tender. 
Even  demanding  a  receipt,  or  an 
intimation  that  it  is  expected,  as  by 
asking,  'Have  you  got  a  receipt?' 
will  vitiate.  The  demand  of  a  re- 
ceipt in  full  would  of  course  be  in- 
admissible. The  reason  of  this  rule 
is  obvious  where  the  debtor  does  not 
in  fact  tender  all  that  is  due;  for  if 
a  debtor  tenders  a  certain  sum  on 
all  that  is  due,  and  the  creditor  re- 
ceives it,  under  these  circumstances 
it  might  compromise  his  rights  in 
seeking  to  recover  more;  but  if  the 
same  sum  was  tendered    uncondi- 


tionally, no  such  effect  would  follow, 
Sutton  v.  Hawkins,  8  C.  &  P.  259. 
The  reason  why  a  tender  has  so 
often  been  held  invalid  when  a  re- 
ceipt in  full  has  been  demanded, 
seems  not  to  have  been  merely  be- 
cause a  receipt  was  asked  for,  but 
rather  because  a  part  was  offered  in. 
full  payment.  See  Sandford  v. 
Buckley,  30  Conn.  344. 

"In  Holton  v.  Brown,  18  Vt.  224,  it 
was  held  that  a  tender  to  pay  a  note 
is  vitiated  by  demand  of  the  note, 
and  refusing  to  accept  a  discharge 
of  the  mortgage  and  a  receipt  for 
the  payment,  the  holder  not  being 
able  at  the  time  to  find  the  note. 
See  Wilder  v.  Seeley,  8  Barb.  408; 
Story  on  Prom.  Notes,  §  106  et  seq. ; 
§§  243,  244;  Balme  v.  Wamburgh,  IG 
Minn.  116. 

"  In  Robinson  v.  Ferreday,  8  C.  & 
P.  752,  it  was  held  that  a  tender  was 
not  vitiated  by  the  person  making  it 
saying,  at  the  time  of  making  it, 
that  it  was  all  that  the  debtor  con- 
sidered was  due;  but  if  he  offers  the 
sum  '  as  aU  that  is  due,'  it  is  differ- 
ent. Svxtton  V.  Hawkins,  8  C.  &  P. 
259;  Field  v.  Newport  &  R.  Co.  3 
N.  &  H.  409;  Thorpe  v.  Burgess,  8 
Dowl.  P.  C.  603.  And  in  Bro^vn  v. 
Owen,  11  Q.  B.  130,  a  tenant  sent  to 
his  landlord  26Z.,  witli  a  letter  in 
these  words:  'I  have  sent  with 
the  bearer  2QI.  to  settle  one  year's 
rent  of  Nant-y-pair.'  The  landlord 
refused  to  take  it,  saying  that  more 
was  due.     Held,  a  good  tender." 

1  Manning  v.  Limn,  2  C.  &  K.  13; 
Scott  V.  Uxbridge  &  R.  Railway  Co. 
L.  R.  1  C.  P.  596;  Sweny  v.  Smith, 
L.  R.  7  Eq.  324.  But  see  Wood  v. 
Hitchcock,  20  Wend.  47. 


TENDER. 


461 


would  vitiate  a  tender;  and  it  is  probable  tlie  requirement  to 
give  a  stamped  receipt  would  liave  that  effect ;  ^  but  it  is  believed 
that  the  tenderer  may  ask  a  sunple  receipt  for  what  is  paid.^  At  all 
events,  if  the  creditor  refuse  the  tender  whoUy  on  the  ground  of 
more  being  due,  he  cannot  afterwards  object  to  the  tender  on 
the  ground  that  the  debtor  required  a  receipt.^  A  tender, 
however,  which  is  accompanied  by  a  demand  for  a  receipt  in 
full,  is  conditional,  and  of  course  invaUd.*     A  tender  of  money 


iLaing  v.  Meader,  1  C.  &  P.  257. 
See  Ryder  v.  Townsend,  7  D.  &  R. 
119. 

2  See  3  Par.  on  Cont.  645,  note  m; 
Jones  V.  Arthur,  8  Dowl.  P.  C.  443. 

3  Richardson  v.  Jackson,  8  M.  & 
W.  298;  Cole  v.  Blake,  Peake,  179. 

^Griffith  V.  Hodges,  1  C.  &  P.  419; 
Glasscott  V.  Day,  5  Esp.  48;  Highaui 
V.  Baddeley,  Gow.  213;  Foord  v. 
Ford,  2  D.  N.  S.  617;  Finch  v.  Miller, 
5  C.  B.  428;  Sandford  v.  Bulkley,  30 
Conn.  344;  Richardson  v.  Boston, 
€tc.  Co.  9  Met.  42;  Perkins  v.  Beck,  4 
Cranch  C.  C.  68;  Hart  v.  Flynn,  8 
Dana,  190;  Holton  v.  Brown,  18  Vt. 
224;  Siter  v.  Price,  2  Bailey,  274; 
Brooklyn  Bank  v.  De  Grauw,  23 
Wend.  342;  Vv^ood  v.  Hitchcock,  30 
Wend.  47;  Eddy  v.  0"Hara,  14  Wend. 
221;  Clark  v.  Mayor,  etc.  1  Keyes,  9; 
Thayer  v.  Brackett,  12  Mass.  450; 
Wagenblast  v.  McKean,  2  Grant  Ca. 
393;  Piilsifer  v.  Shipard,  36  111.  513; 
Cathronv.  Scanlan,  34  Ga.  555;  Shaw 
T.  Sears,  3  Kan.  242;  Hunter  v. 
Warner,  1  Wis.  141;  Rose  v.  Duncan, 
49  Ind.  289.  Where  a  tender  was 
made  in  "greenbacks,"  and  refused 
because  payment  in  coin  was  de- 
manded, it  was  considered  a  valid 
tender,  if  the  court  should  be  of 
opinion  that  the  debtor  was  entitled 
to  pay  in  such  money.  The  money 
was  paid  into  court,  to  be  drawn 
only  on  the  order  of  the  court,  "or 
by  tlie  plaintiff,  if  he  shall  accept 
the  same  as  tendered."    The  plaintiff 


obtained  an  order  of  the  court  and 
drcTv  the  money,  and  the  order  re- 
cited that  he  should  not  be  prejudiced 
by  his  acceptance  and  api^ropriation 
of  the  amount.  Lindsay,  J.,  said: 
"  So  long  as  the  legal  tender  notes 
remained  in  the  hands  of  the  court, 
or  its  agent,  the  Farmers'  Bank,  they 
constituted  a  standing  and  con- 
tinuous offer  to  Robb,  which  he  had 
the  option  at  any  time  to  accept 
'as  tendered.^  But  he  could  not  of 
his  own  volition  take  out  and  appro- 
priate such  notes  upon  any  other 
conditions  than  those  upon  which 
the  tender  was  made.  Nor  had  the 
court  the  power  to  change  or  modify 
these  conditions.  If  it  should  finally 
be  adjudged  that  the  tender  was 
sufficient  in  law,  the  appellant  would 
be  entitled  to  his  costs,  and  the  title 
to  the  money  on  dei^osit  would  be 
vested  in  Robb.  Upon  the  other 
hand,  if  the  court  should  adjudge 
that  Robb  was  entitled  to  have  his 
note  paid  in  gold  coin,  a  judgment 
specifically  enforcing  his  contract 
would  be  rendered,  and  Wells  would 
have  the  right  to  withdraw  from  the 
hands  of  the  court  the  legal  tender 
notes  on  deposit.  The  rule  is  different 
whei'e  there  is  no  controversy  as  to 
the  character  of  the  money  tendered, 
but  where  the  plaintiff  claims  a 
larger  amount  than  the  defendant 
concedes  to  be  due.  In  such  cases 
the  tender  establishes  the  liability  of 
the  party  sued  for  the  amount  ten- 


462 


CONVENTIONAL    LIQUIDATIONS    AND   DISCHARGES. 


in  payment  of  a  debt,  to  be  available,  must  be  without  qualifi- 
cation ;  that  is,  there  must  not  be  anything  raising  an  implication 
that  the  debtor  intends  to  cut  off  or  bar  a  claim  for  any  amount 
beyond  the  sum  tendered.^ 

A  tender  of  money  to  pay  negotiable  paper  may  be  so  far  con- 
ditional as  to  be  accompanied  by  a  demand  for  its  surrender.^ 
The  rule  as  to  negotiable  paper  is  exceptional,  to  withdraw  it 
from  circulation,  and  for  recourse  to  other  parties. 

The  general  doctrine  in  respect  to  tender  is  that  no  condition 
can  be  annexed,  which  by  acceptance  would  preclude  any  ques- 
tion which  would  otherwise  be  open  to  the  creditor.  He  should 
be  at  hberty  to  accept  the  tender,  and  to  say  he  does  not  take  it 


dered,  and  the  plaintiff  has  a  right 
to  accept  that  amount  as  a  payment 
vro  tanto,  and  continue  the  litigation 
for  the  balance  claimed,  he  being 
responsible  for  costs  subsequently- 
accruing,  in  case  he  fails  to  recover 
judgment  for  such  balance  or  some 
part  thereof. 

"Here  it  was  all  the  time  in  the 
power  of  Robb  to  waive  his  objec- 
tion to  the  character  of  the  money 
tendered,  and  accept  it  in  satisfaction 
of  his  debt;  but  as  it  was  lawful 
money,  as  held  recently  by  the 
supreme  court  of  the  United  States 
(Kjiox  v.  Lee  and  Parker  v.  Davis), 
it  "was  not  within  the  power  of  the 
circuit  court  to  permit  him  to  take 
possession  of  it  as  property,  and 
account  to  appellant  for  its  value  in 
coin,  nor  to  compel  the  latter  to  pay 
it  out  upon  any  debt  for  less  than  its 
face  value. 

"As  the  unauthorized  order  of 
the  court  vmder  which  Robb  ob- 
tained possession  of  the  money 
tendered,  was  made  at  his  instance, 
and  contrary  to  the  objections  of 
his  debtor,  he  occupies  no  better 
attitude  than  he  would  have  done 
had  ho  witlidrawn  the  money  from 
the  bank,  as  he  had  a  right  to  do, 
under  the  order  directing  the  deposit 


to  be  made.  He  must  be  held  to 
have  waived  objection  to  the  char- 
acter of  the  money  tendered,  and  to 
have  accepted  it  as  a  payment  of  his 
debt."  WeUs'Adm'rv.  Robb,  9  Bush, 
26. 

1  Wood  V.  Hitchcock,  20  Wend.  47; 
Roosevelt  v.  The  Bull's  Head  Bank, 
45  Barb.  579;  Wilder  v.  Seeley,  8 
Barb.  408;  Sandford  v.  Bulkley,  30 
Conn.  344;  Perkins  v.  Beck,  4  Cranch 
C.  C.  68;  Brooklyn  Bank  v.  De 
Grauw,  23  Wend.  343;  Holton  v. 
Brown,  18  Vt.  224;  Hart  v.  Flynn,  8 
Dana,  190;  Eddy  v.  O'Hara,  14 
Wend.  221;  Clark  v.  Mayor,  etc.  1 
Keyes,  9;  Cheminant  v.  Thornton,  3 
C.  &,  P.  50;  Strong  v.  Harvey,  3 
Bing.  304;  Mitchell  v.  King,  6  C.  & 
P.  237;  Brady  v.  Jones.  2  Dow.  Sc 
Ry.  305;  Benkard  v.  Babcock,  27 
How.  Pr.  391;  Rose  v.  Duncan,  49 
Ind.  269;  Finch  v.  Miller,  5  C.  B. 
428;  Sutton  v.  Hawkuas,  2  C.  &  P.  259. 

2  Wilder  v.  Seeley,  8  Barb.  408; 
Rowley  v.  Ball,  3  Cow.  303;  Smith 
V.  Rockwell,  2  HiU,  483;  Hansard  v. 
Robinson,  7  B.  &  C.  90.  See  Story 
on  Bills,  §§  448-9;  Chitty  on  Bills, 
433;  Story  on  Prom.  Notes,  §§  10&- 
112,  143,  244;  Story  v.  Krewson,  55 
Ind.  397;  Dooley  v.  Smith,  13  Wall. 
604 


TENDER. 


463 


in  full  satisfaction  of  his  demand ;  or  that  he  does  not  forego  any- 
right  by  its  acceptance,  except  to  deny  that  so  much  was  paid, 
and  such  benefits  to  the  tenderer  as  are  consequent  by  legal  in- 
tendment. The  party  making  the  tender  should  be  content  to 
allow  the  creditor  to  take  the  money,  and  get  more  if  the  jury 
find  him  entitled  to  it ;  or  to  assert  any  other  right  which  consist? 
with  the  mere  acceptance  of  the  money,  and  applying  it  to  the 
subject.^ 


1  See  Jennings  v.  Major,  8  C.  &  P. 
61;  Thayer  v.  Brackett,  12  Mass.  450. 
A  party  qualifies  his  tender  when  he 
demands  in  return  what,  according 
to  his  own  tlieory  of  Iiis  riglits,  he  is 
strictly  entitled  to,  for  the  money  he 
pays,  and  even  though  such  theory 
is  legally  correct,  if  that  theory  is 
questioned.  This  is  illustrated  by 
Loring  v.  Cooke,  3  Pick.  48.  A  ten- 
der was  made  to  redeem  from  an  ex- 
ecution sale.  The  amount  tendered 
for  that  purpose  was  not  the  subject 
of  dispute;  but  the  debtor  demanded 
a  release  which  was  not  necessary  to 
cancel  the  sale,  and  the  purchaser's 
inchoate  title;  and  a  release  had  been 
prepared  by  the  tenderer  ready  for 
execution.  The  purchaser  refused 
to  execute  the  release,  and  claimed 
to  hold  his  purchase  to  secure  other 
debts.  Tills  right  was  held  not  to 
exist,  as  the  English  doctrine  of 
tacking  was  not  recognized;  but  the 
tender  was  invalidated  by  the  de- 
mand of  a  release,  though  such  re- 
lease, if  executed,  would  have 
extinguished  no  right  which  the  pur- 
chaser could  have  asserted.  In  the 
subsequent  case  of  Sanders  v.  Fr(>st, 
5  Pick.  259,  569,  a  tender  was  made 
on  a  mortgage  debt  after  the  mort- 
gagee had  taken  possession  to  fore- 
close for  interest  in  arrear,  the 
principal  not  being  due.  The  tender 
■was  of  tlie  whole  mortgage  debt,  in- 
cluding interest  comi)uted  to  the 
date  of  the  tender,  and  not  to  the 


maturity  of  the  debt.  The  court 
held  that  as  to  the  principal  the  ten- 
der was  not  good;  for  the  creditor 
had  a  right  to  keep  his  debt  at  in- 
terest until  the  time  appointed  for 
payment.  But  it  was  no  objection 
to  the  tender,  in  respect  to  interest 
due,  that  a  larger  sum  was  tendered ; 
nor  that  a  discharge  of  the  mortgage 
was  demanded;  for  since  the  statute 
entitled  the  mortgagor  to  a  dis- 
charge on  payment  of  the  mortgage 
debt,  the  demand  of  such  discharge 
was  only  of  the  performance  of  a 
duty  imposed  by  law.  So  it  seems 
that  the  tender,  as  to  interest,  was 
not  rendered  nugatory  by  being  ac- 
companied by  a  condition  which  was 
only  admissible  when  a  tender  could 
rightfully  be  made  of  the  mortgage 
debt.  It  was  sustained  because  it 
was  the  duty  of  the  mortgagee  to  in- 
form the  mortgagor  that  possession 
was  held  only  for  the  interest  due; 
and  such  mortgagee  should  have 
shown  a  willingness  to  accept  pay- 
ment of  such  interest. 

In  Story  v.  Krewson,  55  Ind.  397, 
the  court  held  that  under  a  statute 
which  requires  a  mortgagee  of 
lands  to  discharge  a  mortgage  of 
record,  after  having  received  full 
payment,  a  mortgagor  is  not  enti- 
tled to  demand  such  discharge  when 
tendering  such  full  payment;  that 
the  mortgagees  could  not  be  re- 
quired to  do  so,  merely  upon  a  ten- 
der of  the  amount,  as  a  condition 


4:64: 


CONVENTIONAL    LIQinDATIONS    AND   DISCHAEGES. 


When  mutual  acts  are  to  be  done  by  two  parties,  at  the  same 
tune,  and  the  right  of  each  depends  upon  the  performance  of 
the  other,  either  may  tender  his  part  of  the  performance,  upon 
the  condition  that  the  other  performs  his  part ;  and  neither  is 
compelled  to  perform  his  part  unless  the  other  performs  his 
part,  also ;  as  when  land  is  bargained  and  sold,  to  be  conveyed 
upon  payment  of  the  purchase  money.  In  such  a  case  neither 
can  be  compelled  to  perform  his  part  of  the  agreement,  ex- 
cept on  the  performance  by  the  other  of  his  part ;  that  is,  the 
vendee  cannot  demand  the  conveyance  without  tendering  the 
purchase  money ;  and  the  vendor  cannot  demand  the  purchase 
money  without  tendering  tlie  conveyance ;  and  either  may  make 
a  good  tender  to  the  other,  upon  the  condition  that  he  will  per- 
form his  part  of  the  agreement.^ 

Effect  of  tender  accepted. —  Acceptance  of  a  tender,  when 
made  as  fuU  payment,  has  the  effect  of  full  satisfaction  in  case 
of  a  disputed  claim.^    But  the  acceptance  of  a  proper  tender, 


to  their  right  to  receive  the  amount. 
In  this  case,  Biddle,  J.,  said:  "  When 
one  party  is  to  perform  an  act,  whose 
right  does  not  depend  upon  any  act 
to  be  performed  by  tlie  other  party, 
the  tender  must  be  witliout  con- 
dition, as  where  mqney  is  to  be  paid 
without  condition.  The  current  of 
authorities  —  indeed  we  beheve  it  to 
be  quite  uniform  —  holds  that  the 
party  bound  to  pay  tlie  money  can- 
not make  a  good  tender  upon  the 
condition  that  the  party  to  whom  the 
money  is  to  be  paid  shall  give  him  a 
written  receipt  therefor;  and  in  the 
case  of  a  non-commercial  promissory 
note,  tlie  authorities  are  in  conflict, 
whether  a  good  tender  can  be  made 
upon  the  condition  that  the  note 
shall  be  surrendered;  but  in  the  case 
of  commercial  paper,  the  authorities 
bcem  to  be  uniform,  that  a  tender 
upon  condition  that  the  paper  shall 
be  surrendered,  is  good,  because 
such  paper  might  be  put  in  circula- 
tion after  payment,  and  innocent 


parties  become  liable;  not  so,  how- 
ever, with  non-commercial  paper; 
after  payment  by  the  maker,  it 
becomes  harmless  against  him, 
wherever  it  may  go."  A  tender  to  be 
good  must  not  be  upon  any  condi- 
tion prejudicial  to  the  party  to 
whom  it  is  made.  See  Wheelock  v. 
Tanner,  39  N.  Y.  481;  Hepburn  v. 
Auld,  1  Crauch,  321.  D  purchased 
some  oats  of  F,  who  took  goods 
worth  $41.78  in  part  iiayment.  D 
tendered  $170  to  F,  telling  him  that 
if  he  took  $130  of  the  amount  it 
closed  the  whole  business;  and  if  he 
took  the  $170  it  settled  the  oat  busi- 
ness and  left  the  account  for  the 
goods  standing;  held,  not  condi- 
tional; D  merely  explained  his  ten- 
der.    Foster  v.  Drew,  39  Vt.  51. 

1  Story  V.  Krewson,  supra. 

2  Jenks  V.  Burr,  56  111.  450;  Miller 
V.  Holden,  18  Vt.  337;  Gassett  v. 
Audover;  21  Vt.  342;  Tousley  v. 
Healey,  39  Vt.  522;  Draper  v.  Pierce, 
29  Vt.  250;  Cole  v.  Cliamplain  Trans- 


TENDEE. 


^65 


accompanied  by  no  such  condition,  does  not  preclude  the  cred- 
itor from  proceeding  for  more.^  An  appeal  is  not  Avaived  by 
acceptance  of  a  payment.  The  acceptance  of  a  sum  tendered 
on  account  of  a  claim  only  extinguishes  it  when  the  sum  paid 
is  all  that  the  creditor  is  entitled  to,  or  when  it  is  accepted  as 
being  so.^ 

Must  be  kept  good. —  A  tender  must  be  kept  good ;  that  is, 
the  debtor  must  at  all  times  be  prepared  to  meet  a  demand  for 
the  money  he  has  tendered ;  and  if  he  fails  to  do  so,  he  places 
himself  in  default,  and  loses  the  benefit  of  his  tender.*  And 
the  same  rule  applies  in  chancery  and  at  law.* 

It  is  not  necessary  to  keep  for  the  creditor  the  identical  money 
tendered.  The  tenderer  is  at  hberty  to  use  it  at  his  own ;  all  he 
is  under  obligation  to  do  is  to  be  ready  at  all  times  to  pay  the 
debt  in  current  money  when  requested.'^ 


portation  Co.  26  Vt.  87;  McDaniels 
T.  Lapham,  29  Yt.  230;  Goslin  v. 
Hoodson,  24  Vt.  140;  Adams  v.  Helm, 
55  Mo.  468.     See  ante,  p.  459. ' 

1  Higgius  V.  Halligan,  46  HI.  173; 
Royal  V.  Rich,  10  East,  47;  Slight  v. 
Rhiueland,  1  John.  192. 

2  Beukard  v.  Babcock,  2  Robt.  175. 
31  Saund.   33,  note  2;  Wilder  v. 

Seeley,  8  Barb.  408;  State  v.  Briggs, 
65  N.  C.  159;  Brownson  v.  Rock 
Island,  etc.  Co.  40  How.  Pr.  48; 
Mohr  V.  Stoner,  14  Iowa,  115;  Hay- 
den  V.  Anderson,  11  Iowa,  30;  War- 
rington V.  Pollard,  24  Iowa,  281 
Kortwright  v.  Cady,  23  Barb.  490 
S.  C.  5  Abb.  358;  12  How.  Pr.  424 
Brooklyn  Bank  v.  DeGrauw,  23 
Wend.  342;  Pulsifer  v.  Shepard,  36 
lU.  573;  Nelson  v.  Oren,  41  111.  18; 
Shaw  V.  Russell,  38  HI.  18;  CuUen  v. 
Green,  5  Harr.  17;  Clark  v.  Mul- 
lenix,  11  Ind.  532;  Jarbee  v.  McAtee, 
7  B.  Mon.  279;  Livingston  v.  Harri- 
son, 2  E.  D.  Smith,  197;  Call  v. 
Scott,  4  Call,  402;  Mason  v.  Croom, 
24  Ga.  211;  DeWolf  v.  Long,  7  111. 
679;  Bock  v.  Jones,  16  Tex.  461; 
Webster  v.  Pierce,  35  111.  158;  Marine 
Vol.  1  —  30 


Bank  V.  Rushmore,  28111.  463;  Sloan 
V.  Petree,  10  111.  262;  Stow  v.  Rus- 
sell, 36  HI.  49;  Wright  v.  McNeely, 
11  in.  241:  Wood  v.  M.  S.  L.  &  T. 
Co.  51  ni.  267;  Saver  v.  O'Reilly,  80 
111.  104;  Haynes  v.  Thorn,  28  N.  H. 
386;  Nantz  v.  Lober,  1  Duv.  304; 
Hay  ward  v.  Hague,  4  Esp.  93;  Pierce 
V.  Bowley,  1  Stark.  323;  Si^eybey  v. 
Hide,  1  Camp.  181;  Rivers  v.  Griffith, 
1  D.  &  Ry.  215;  Coles  v.  BeU,  1 
Camp.  478,  note;  Coore  v.  Calloway, 
1  Esp.  115. 

^DeWoK  V.  Long,  2  Gilm.  679; 
Doyle  V.  Teas,  4  Scam.  202;  The 
Brooklyn  Bank  v.  DeGrauw,  23 
Wend.  342;  Stow  v.  Russell,  36  111. 
18.  A  plaintiff  failing  in  his  suit  in 
equity  after  tender  and  dejiosit  of 
money  in  court  brought  error;  and 
pending  the  proceedings  in  error 
withdrew  the  deposit;  held,  not  a 
waiver  of  error.  Vail  v.  McMiUan, 
17  Ohio  St.  617. 

5  Curtiss  V.  Greenbanks,  24  Vt.  536; 
But  see  3  Har.  &  McH.  352;  Roose- 
velt V.  The  Bull's  Head  Bank,  45 
Barb.  579. 


4(56  CONVENTIONAL    LIQUIDATIONS    AND    DI8CHAKGES. 

A  refusal  by  the  debtor  after  a  tender  to  pay  the  money  ten- 
dered on  demand  of  the  creditor,  deprives  the  tender  of  all  legal 
availability  and  effect.^  For  this  pm'pose  the  debtor  should  keep 
the  money  in  his  own  possession,  and  may  use  it  as  his  own  so 
far  as  consistent  with  constant  readiness  to  pay.^ "  A  deposit  of 
it  with  a  third  person  for  the  creditor,  and  giving  him  notice 
thereof,  will  not  exempt  him  from  this  necessity ;  for  the  cred- 
itor will  be  under  no  obligation  to  apply  to  the  dej^ositary  for 
it.  If  he  thinks  proper  to  accept  the  tender,  he  may  call  on 
the  debtor  himself  for  it.  In  that  case,  unless  the  debtor  pays 
or  tenders  the  sum,  he  will  lose  the  benefit  of  the  previous  ten- 
der.^ Hence  the  debtor  is  entitled  to  the  benefit  of  his  tender 
if  he  is  ready  with  the  money  on  a  demand  made  to  himself 
personally,  although  he  may  have  made  the  tender  by  his 
attorney.* 

The  demand  for  the  money  after  a  tender  and  refusal  must 
be  of  the  precise  sum  tendered,''  and  must  be  made  by  some  one 
authorized  to  receive  it  and  give  the  debtor  a  discharge.® 
"Where  the  tender  had  been  made  by  two  persons,  demand  on 
one  is  sufficient.^  If  money  is  tendered  with  which  the  debtor 
has  a  right  then  to  discharge  the  debt,  and  sufficient  to  satisfy 
it,  he  is  not  to  bear  the  loss  of  its  subsequent  depreciation.^ 

iNantz  V    Lober,    1   Duval,    304;  ^  pierce  v.  Bowles,  1   Stark.   523. 

Eose  V.  Brown,  Kirby,  243.  A  letter  demanding  payment  of  a 

2  Cm-tiss  V.  Greeubanks,  24  Vt.  debt  sent  to  the  debtor's  house,  to 
536.  But  see  Roosevelt  v.  Bull's  which  an  answer  is  returned  that 
Head  Bank,  45  Barb.  479.  the  demand  should  be  settled,  was 

3  Trow  V.  Trow,  24  Pick.  168.  held  to  be  sufficient  evidence  of  a 
^Berthold  v.  Reyburn,  37  Mo.  586.      demand  on  an  issue  of  a  subsequent 

A  defendant's  attorney  having  made  demand  and  refusal  to  a  plea  of 
a  tender,  the  plaintiffs  attorney  sub-  tender.  Hay  ward  v.  Hague,  4  Esp. 
sequently  agreed  to  take  it,  but  it  93.  A  tender  may  lose  its  effect  by 
was  held  this  assent  was  not  such  a  mutual  waiver,  as  where,  after  ten- 
demand  as  would  avoid  the  tender,  der,  the  debtor,  at  the  suggestion  of 
The  demand  for  such  a  pui-pose  the  creditor,  consents  to  retain  the 
must  be  made  upon  the  debtor  per-  money.  He  cannot  afterwards  set 
sonally.  it    up    as    a    defense.      Terrell    v. 

sSpybey  v.    Hide,    1   Camp.    181;  Walker,  65  N.  C.  91. 
Rivers  v.  Griffiths,  1   Dow.  &  Ry.         *  Anonymous,  1  Hayw.  183.     See 

215.  Jeter  v.  Littlejohn,  3  Murp.  L.  & 

6  Coles  V.    Bell,    1    Camp.   478,  n;  Eq.  186. 
Coore  V,  Calloway,  1  Esp.  115. 


TENDER. 


467 


Waiver  of  strict  tender,  and  oanssioN  or  tender  where  ther  e 
IS  sufficient  excuse. —  There  is  probably  no  difference  in  re- 
spect to  the  effect  of  stopping  interest  as  damages,  based  on 
default,  between  an  actual  tender,  or  tender  with  some  punc- 
tilio waived,  and  a  readiness  to  pay,  and  a  tender  altogether 
prevented  by  the  conduct  of  the  creditor;  as,  for  example,  by 
his  absence  or  concealment.  For  this  effect,  it  is  only  needful  to 
negative  default.^  Where,  however,  the  debt  bears  interest  by 
the  agreement  of  the  parties  after  it  is  payable,  an  actual 
tender  is  doubtless*  essential  to  stop  interest,  unless  the  creditor 
prevents  it  by  some  fraudulent  evasion.^  Where  a  tender  is 
made  to  the  creditor,  not  in  currency  which  he  is  bound  to  re- 
ceive, but  in  bank  bills,  current  at  par  as  money,  and  not 
objected  to  on  that  account ;  or  is  made  by  a  check  on  a  bank 
assented  to  as  a  mode  of  pa3Tnent,  the  offer  is  a  sufficient  ten- 
der. And  where  there  is  a  verbal  offer  to  pay,  and  the  debtor 
is  prepared  to  make  his  offer  good,  but  omits  to  produce  the 
money  to  the  view  of  the  creditor,  because  the  latter  says 
the  money  need  not  be  produced,  as  he  will  not  receive  it,  the 
proffer  is  in  substance  and  legal  effect  a  tender.^ 

The  law  interprets  the  conduct  of  the  parties  in  the  cere- 
mony of  tender  according  to  their  apparent  intentions;  and' 
determines  its  sufficiency  upon  the  objections  then  stated. 
We  have  seen  that  certain  incidents,  such  as  demanding  a  re- 
ceipt for  what  is  paid,  or  change  where  there  is  an  offer  of  a 
larger  amount,  or  bank  bills,  instead  of  money  which  is  legal 
tender,  must  be  specially  objected  to  at  the  time.  Silence  is  a 
tacit  waiver  of  such  objections.  Other  objections  may  also  be 
waived  by  implication  on  the  maxim  of  expressio  unius  est  exclusio 
alterius.  A  general  rule  on  this  subject  is  that  if  a  tender  is 
refused  on  a  specific  ground,  the  creditor  will  not  be  permitted 
afterwards  to  raise  any  other  objection  which,  if  stated  at  the 
time  of  the  tender,  could  have  been  obviated.* 

1  Tliorn  V.  Mosher,  20  N.  J.  Eq.  man  v.  Pultz,  21  N.  Y.  547;  Keller 

257.  V.   Fisher,   7  Ind.    718:   Mitcliell  v. 

2Gilmore    v.   Holt,   4    Pick.    257;  Cook,    29    Barb.     243;    Haskell     v. 

South  worth  v.  Smith,  7  Gush.  391.  Brewer,    11    Me.    258;   Hay  ward    v. 

3 Holmes  v.  Holmes,  9  N.  Y.  525.  Hunger,    14  Iowa,   516;    Graves    v. 

*  Hall  V.  Peters,  7  Barb.  331;  Car-  McFarlane,  2  Cold.  167;  Bradshaw  v. 


46S 


CONVENTIO^^AL   LIQITIDATIONS    AND   DISCHAEaES. 


Tender  must  be  pleaded  and  money  paid  into  court. —  If  the 
money  tendered  is  not  demanded  by  the  creditor,  and  he  brings 
suit  upon  the  demand,  the  defendant  must  plead  the  tender, 
and  liis  plea  must  be  accompanied  by  payment  of  the  money 
into  court  for  the  creditor.^ 

Effect  of  plea  of  tender. —  The  plea  of  tender  is  a  conclu- 
sive admission  that  so  much  is  due ;  ^  and  if  the  money  is  not 
paid  into  court  the  plaintiff  may  sign  judgment.'  It  has  been 
held  that  an  answer  under  the  code  must  allege  that  the  money 
has  been  brought  into  court ;  and  if  it  omits  this  allegation,  it 
does  not  state  facts  sufficient  to  constitute  a  defense,  and  the 
plaintiff  may  avail  himself  of  the  objection  on  the  trial.*  And 
if  issue  be  joined  on  the  plea  of  tender  where  the  money  has 


Davis,  12  Tex.  336;  Nelson  v.  Eob- 
son,  17  Minn.  284;  Rudolpli  v.  AVag- 
ner,  36  Ala.  698;  Stakes  v.  Becknagie, 
38  N.  Y.  Sup.  Ct.  368;  Hull  v.  Peters, 

7  Barb.  331;-  Eicker  v.  Blanchard,  45 
N.  H.  39;  Abbott  v.  Baufield,  43  N.  H. 
152.  If  a  tender  of  money  which  the 
creditor  refused  is  left  with  him 
against  his  wish,  and  he  refuses  to 
give  it  up  w^hen  called  for,  it  w^ill 
be  held  sufficient.  Rogers  v.  Rutter, 
11  Gray,  410. 

1  Jenkins  v.  Briggs,  65  N.  C.  159; 
Claflin  V.  Hawes,  8  Mass.  261;  Rose- 
velt  V.  N.  Y.  &  H.  R.  R.  Co.  30  How. 
226;  Harvey  v.  Hackley,  6  Watts, 
264;  Nelson  v.  Oren,  41  111.  18; 
Bi-OAvn  V.  FergTison,  2  Denio,  196; 
Halsey  v.  Flint,  15  Abb.  367;  Sheri- 
dan V.  Smith,  2  Hill,  538;  Bronson 
V.  Chicago,  etc.  R.  R.  Co.  40  How. 
Pr.  48;  Livingston  v.  Harrison, 
2  E.  D.  Smith,  197;  Robinson  v. 
Gaines,  3  Call,  243;  Hume  v.  Peploe, 

8  East,  168;  Giles  v  Hartis,  1  Lord 
Raym.  254;  Becker  v.  Boon,  61  N. 
Y.  317;  Karthaus  v.  Owings,  6  Hflr. 
&  J.  134;  Griffin  v.  Tyson,  17  Vt.  35; 
Cullen  V.  Green,  5  Harr.  17;  Mason 
v.  Croom,  24  Geo.  211;  Brock  v. 
Jones,   16  Tex.   461;  Clark  v.  Mul- 


lenix,  11  Ind.  532;  DeWolf  v.  Long, 
7  111.  679:  Marine  Bank  v.  Rush- 
more,  28  111.  463;  Webster  v.  Pierce, 
35  111.  158;  Mohn  v.  Storer,  17  Iowa, 
30;  Hayden  v.  Anderson,  17  Iowa, 
158;  Warrington  v.  PoUard,  24 
Iowa,  281;  Jarbee  v.  McAtee,  7  B. 
Mon.  279;  Nelson  v.  Oren,  41  lU.  18; 
De  Goer  v.  Kellar,  2  La.  Ann.  496; 
Alexandrie  v.  Saloy,  14  La.  Ann. 
327;  CaU  v.  Scott,  4  CaU,  402;  State 
V.  Briggs,  65  N.  C.  159.  See  Terrell 
V.  Walker,  65  N.  C.  91. 

2  Monroe  v.  Chaldeck,  78  111.  428; 
Rosevelt  v.  N.  H.  &  H.  R.  R.  Co. 
supra;  Currier  v.  Jordan,  117  Mass. 
260;  Preeble  v.  Murray,  4  Haywood, 
27;  Huntington  v.  The  American 
Bank,  6  Pick.  340;  2  Pars,  on  Cont. 
638,  note.  But  see  Clark  v.  Lyon 
Co.  7  Nevada,  76. 

3  Anon.  Tidd's  Pr.  612;  Chapman 
V.  Hicks,  2  Dowl.  P.  C.  641;  Monroe 
V.  Chaldeck,  78  HI.  428.  See  Knox 
V.  Light,  12  111.  86;  Sloan  v.  Petrie, 
16  lU.  262;  Marine  Bank  v.  Rush- 
man,  28  111.  463;  Webster  v.  Pierce, 
35  m.  158;  Stow  v.  Russell,  36  lU. 
35;  Reed  v.  Woodman,  17  Me.  43. 

4  Becker  v.  Boon,  61  N.  Y.  317. 


TENDER. 


469 


not  been  brought  into  court,  it  has  been  held  that  judgment 
should  be  given  for  the  plaintiff,  notwithstanding  a  verdict  in 
favor  of  the  defendant  on  that  issue.^  But  in  other  cases  the 
omission  to  pay  the  money  into  court  has  been  treated  as  an 
irregularity.  And  if  the  plaintiff  accept  the  plea  and  reply 
thereto,  without  receiving  notice  that  the  money  has  been  paid 
in,  he  waives  the  irregularity.^ 

The  plaintiff  is  entitled  to  the  money  paid  into  court,  at  law, 
with  a  plea  of  tender,  in  any  event.^  He  may  take  the  money 
out,  though  he  replies  that  the  tender  "was  not  made  before 
action  brought.*  But  this  rule,  that  the  plaintiff  is  entitled 
absolutely  to  the  amount  tendered  and  brought  into  court,  has 
been  held  not  to  apply  to  an  action  brought  to  recover  a  pen- 
alty, or  other  fixed  amount,  where,  unless  the  plaintiff  recovers 
the  amount  of  the  penalty  or  fixed  sum,  he  is  not  entitled  to 
judgment.^  Nor  is  it  apphcable  to  money  paid  into  court  by 
the  plaintiff  on  a  bill  in  equity  to  redeem,  where  the  defendant 
for  whom  such  money  is  paid  in  contests  the  right  to  redeem, 
and  succeeds  in  his  defense.® 


>  Claflin  V.  Hawes,  8  Mass.  261. 

2  Woodruff  V.  Ti-apnall,  7  Eng. 
640;  Sheridan  v.  Smith,  2  Hill,  538; 
Shepherd  v.  Wysing,  3  W.  Va.  46; 
Rosevelt  v.  N.  Y.  &  H.  R.  R.  Co.  30 
How.  Pr.  226.  lu  this  case  the  de- 
fendant set  up  in  the  answer  a  ten- 
der without  paying  the  money  into 
court.  This  answer  was  accepted, 
and  the  plaintiff  afterwards  appHed 
to  the  court  for  an  order  requiring 
the  defendant  to  pay  to  the  plaintiff 
the  sum  tendered,  under  a  provision 
of  the  code,  that  "  when  the  answer 
of  the  defendant  expressly,  or  by 
not  denying,  admits  part  of  the 
plaintiff's  claim  to  be  just,  the  court, 
on  motion,  may  order  defendant  to 
satisfy  that  part  of  the  claim,  and 
maj^  enforce  the  order  as  it  enforces 
a  judgment  or  provisional  remedy." 
The  tender  was  held  to  be  such  an 
admission.  The  court  say:  "  The 
money  tendered  in  this  case  was  not 


paid  into  court,  and  it  is  to  be  in- 
ferred from  the  fact  that  the  answer 
is  treated  as  part  of  the  pleadings, 
that  it  is  accepted  without  tlie 
money  being  paid  in.  On  the  facts 
before  me,  I  must  treat  the  plea  of 
tender  as  sufficient,  although  the 
money  has  not  been  paid  into  court. 
But  if  the  tender  was  irregular  for 
the  reason  stated,  the  admission  of 
the  justice  of  the  plaintiff's  claim 
would  be  none  the  less  distinct  and 
unequivocal."  See  also  Merrett  v. 
Thompson,  10  How.  428;  Thurston 
V.  Marsh,  5  Abb.  389.    - 

sSweetland  v  TuthiU,  54  Dl.  215. 
See  Ruble  v.  Murray,  4  Haywood, 
284. 

<  LeGrew  v.  Cooke,  1  Bos.  &  Pul. 
332. 

5  The  Canestota  &  M.  Plk.  Co.  v. 
Parkill,  50  Barb.  601. 

6  Putnam  v.  Putnam,  13  Pick.  129. 
In   this  case,    Shaw,   C.    J.,   said : 


470 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


Effect  of  tender  when  money  paid  into  court. —  A  mere  ten- 
der of  a  sufficient  sum  has  only  the  effect  to  stop  interest,  and 
protect  the  debtor  against  subsequent  cost.  It  does  not  discharge 
the  debt.^  But  when  the  debtor  has  kept  the  tender  good,  and 
on  being  sued  regularly  pleads  the  tender  and  brings  the  m  oney 
into  court,  it  accomplishes  such  discharge,  whether  the  action 


"  There  is  no  analogy  between  the 
payment  of  money  into  court  in  a 
common  law  action  of  debt  or  as- 
sumpsit and  a  like  payment  upon  a 
bill  in  equity  to  redeem  under  our 
statute,  and  hence  the  authorities 
applicable  to  the  former  case  afford 
no  rule  governing  the  present.  By 
payment  into  court,  in  an  action 
claiming  debt  or  damages,  the  de- 
fendant admits,  in  the  most  formal 
manner,  his  absolute  liability  to  that 
sum,  and  by  the  form  of  the  rule  or 
plea  offers  it  in  satisfaction  and  dis- 
charge of  such  admitted  liability. 
If  not  accepted,  it  is  paid  into  couii; 
for  the  plaintiff's  use,  and  the  de- 
fendant derives  the  full  benefit  of  it 
as  if  paid  to  and  accepted  by  the 
plaintiff  himself,  because  it  operates 
as  a  bar  pro  tanto  to  all  claims  in 
respect  to  such  sum.  It  is  therefore 
upon  the  strongest  reason  held  that 
such  payment  shall  be  deemed  abso- 
lute, and  the  party  shall  not  be  per- 
mitted to  draw  it  in  question  on  the 
ground  of  equity  or  mistake,  or  any 
ground  except  fraud  or  imposition. 
"  But  the  character  of  a  payment 
of  money  into  court  on  a  bill  in  equity 
to  redeem  aj  mortgage  is  entirely 
different.  It  is  in  its  nature  entirely 
provisional;  it  is  an  offer  to  pay  in 
discharge  of  a  debt  secured  by  mort- 
gage on  real  estate,  the  purpose  of 
which  is,  to  release  such  real  estate 
from  the  incumbrance.  But  the  de- 
fendant contests  the  right  to  re- 
deem; alleges  that,  by  force  of  law 
and  the  lapse  of  time,  the  mortgage 
is  foreclosud,  that  she  has  become 


the  absolute  owner  of  the  estate,  and 
of  course  that  there  is  no  longer  any 
debt  secured  by  mortgage,  and, 
consequently,  that  she  lias  no  claim 
to  the  money  offered  in  satisfaction 
of  such  debt.  This  defense  prevails, 
and  the  conclusion  of  law  is,  that 
the  defendant  was  right  in  rejecting 
the  money  tendered  and  not  releas- 
ing the  estate.  She  cannot  now  be 
allowed  to  claim  this  money  against 
her  own  formal  act  showing  that 
she  has  no  title  to  it.  Nov  ought 
the  plaintiff  to  be  bound  by  a  pro- 
visional offer  of  money  to  redeem 
an  estate,  where  it  appears  that  they 
cannot  redeem,  and  the  payment 
cannot  avail  them  for  the  only  pur- 
pose for  which  the  money  was 
offered." 

iBac.  Abr.  Tender,  F.;  Coke,  Litt. 
207;  Law  v.  Jackson,  9  Cow.  746 
Corley  v.  Vance,  17  Mass.  389 
Haynes  v.  Thorn,  28  K  H.  886,  400 
Barnard  v.  Cushman,  35  111.  451 
Raymond  v.  Barnard,  12  John.  274 
Cost  V.  Houston,  8  John.  Ch,  243 
Jackson  v.  Lewis,  5  Cow,  248;  Cor- 
nell V.  Green,  10  S.  &  R.  14.  See 
Jeter  v.  Littlejohn,  8  Murph.  186; 
Staats  v.  Evans,  35  111.  455;  Teass' 
Adm'r  v.  Boyd,  29  Mo.  131;  Wlialen 
V.  Woodard,  66  Pa.  St.  158;  The 
Penn,  Co.  for  etc.  v,  Dorey,  64  Pa. 
St.  260;  Dixon  v.  Clark,  5  C.  B.  365 
Waestell  v.  Atkinson,  3  Bing.  290 
Johnson  v.  Triggs,  4  G.  Greene,  97 
Freeman  v.  Fleming,  5  Iowa,  460 
Shant  v.  Southern,  10  Iowa,  415 
Mohn  V.  Stoner,  11  Iowa,  30;  Hay- 
ward  V.  Mimger,  14  Iowa,  516. 


TENDEE. 


471 


proceeds  to  judgment  or  not.  If  the  action  abate  or  be  with- 
drawn, the  defendant  in  a  subsequent  action  may  plead  the  ten- 
der and  payment  of  the  money  into  court,  in  the  first  action; 
and  if  these  facts  are  estabhshed,  he  will  be  entitled  to  judgment.' 

Effect  of  sufficient  tender  on  collatekal  secukities. —  A  suf- 
ficient tender,  however,  will  discharge  aU  liens  and  collateral  se- 
curities ;  and  for  this  effect  it  need  not  be  kept  good,  nor  be 
brought  into  court.  Thus,  the  tender  of  the  amount  of  a  debt, 
secured  by  mortgage  of  real  estate,  before,  or  where  there  is  no 
forfeiture  of  the  legal  estate  as  a  consequence  of  default ;  or  be- 
fore foreclosure,  wiU  discharge  the  mortgage ;  the  land,  will  be 
as  free  of  the  incumbrance  at  once  after  the  tender  as  though 
the  mortgage  had  not  been  made.  And  if  the  mortgagee  is  in 
possession,  the  mortgagor  may  recover  in  ejectment.^  It  mU 
discharge  a  mechanic's  lien  for  the  repair  of  personal  property ;  ^ 
an  attorney's  lien  j  ^  a  pledge  or  mortgage  of  personal  property ;  ^ 


1  Robinson  v.  Gaines,  3  Call,  212. 
See  Warden  v.  Arell,  2  Wash.  Va. 
359.  Keyes  t.  Eoder,  1  Head,  19, 
was  an  action  of  debt,  commenced 
in  a  justice's  court.  It  was  held  that 
a  mere  offer  by  the  defendant  to  the 
plaintiff,  of  the  sum  claimed  before 
the  issuance  of  the  warrant,  could 
not  be  pleaded  as  a  valid  tender  in 
bar  of  the  action.  The  money  should 
have  been  produced  and  offered  also, 
at  the  time  of  the  trial  before  the 
justice;  and  upon  appeal  to  the  cir- 
cuit court,  it  should  have  been 
brought  into  that  court  at  tlie  time 
of  filing  the  papers;  and  still  lield 
ready,  and  jiroduced  as  a  continuous 
offer.  A  mere  offer  of  the  amount 
to  the  plaintiff  by  the  defendant's 
covmsel,  in  the  progress  of  the  aVgu- 
ment,  in  the  circuit  court,  would  not 
be  sufficient. 

•^Kortright  v.  Cody,  21  N.  Y.  343; 
5  Abb.  3.")8;  Jackson  v.  Crafts,  18 
John.  110;  Edwards  v.  Farmers'  F. 
Ins.  and  L.  Co.  21  Wend.  467;  26 
Wend.  541;  Amot  v.  Post,  6  Hill,  65; 


S.  C.  2  Denio,  344;  Tiffany  v.  St. 
John,  5  Lans.  153;  65  N.  Y.  314; 
Hartley  v.  Totham,  1  Eobt.  246;  1 
Keyes,  222;  Trimm  v.  Marsh,  54  N, 
Y  599;  McDaniels  v.  Reed,  17  Vt. 
674;  Willard  v,  Harvey,  5  N.  H.  252; 
Swett  V.  Horn,  1  N.  H.  332;  Eslon 
V.  Mitchell,  26  Mich.  500;  Caruthers 
V.  Humjihry,  13  Mich.  270;  Van 
Husan  v.  Kanouse,  13  Mich.  303; 
Saltus  V.  Everett,  20  Wend.  267; 
Maynard  v  Hunt,  5  Pick.  240.  See 
Harris  v.  Jex,  66  Barb.  232;  Meriitt 
V.  Lambert,  7  Paige,  344;  Ketchum 
V.  Crippen,  37  Cal.  223;  Biyan  v. 
Maumee,  28  Cal.  238;  Wilson  v. 
KeeUng,  1  Wash.  Va.  194. 

3  Moynahan  v.  Moore,  9  Mich.  9. 

4  Stokes  on  Lien  of  Attys.  81,  172 
Jones  V.  Tarleton,  9  M.  &  W.  675 
Scarf  V.  Morgan,  4  M.  &  W.  280 
Ii-ving  V.  Viana,  2  Y.  &  Jer.  71. 

sWildman  v.  Radenaker,  20  Cal. 
615;  Ball  v.  Stanley,  5  Yerg.  199; 
Cooley  V.  Weeks,  10  Yerg.  141; 
Coggs  V.  Barnard,  2  Lord  Raym. 
909;  Comyn's  Dig.  tit.  Mortgage,  A, 


472 


CONVENTIONAL   LIQUIDATIONS   AND   DISCHARGES. 


the  right  to  distrain  for  rent;^  and  a  tender  will  release  a 
sui^et}^^ 

Whether  a  judgment  which  is  a  lien  on  land,  or  under  which 
an  execution  has  been  levied,  will  be  discharged  by  a  tender,  is 
not  very  clearly  settled.  It  has  been  held  that  to  make  a  tender 
effectual  for  this  purpose,  the  money  should  be  brought  into 
court  and  the  judgment  satisfied  of  record.  Being  a  debt  of 
record,  and  a  tender  not  discharging  the  debt,  the  lien  being  a 
legal  consequence,  must  subsist  while  the  debt  continues  in  that 
form.^  But  the  weight  of  reason,  if  not  authority,  is  in  favor  of 
holding  an  execution  lien,  discharged  by  a  tender,  the  same  as  a 
conventional  hen  would  be.  In  each  case  the  hen  exists  as  a  col- 
lateral advantage  to  the  creditor.  It  is  incidental  to  the  debt. 
In  each  case,  if  the  hen  is  not  satisfied,  there  is  a  power  to  seU. 
Payment  will  extinguish  one  as  well  as  the  other.* 


1  Hunter  v.  Le  Conte,  6  Cow.  738. 

2  Hayes  v.  Joseplii,  26  Cal.  535; 
Solomon  v.  Reese,  34  Cal.  28. 

3  Jackson  v.  Lawe,  5  Cow.  248;  S. 
C.  9  Cow.  641;  Halsey  v.  Flint,  15 
Abb.  367.  See  Shumaker  v.  Nichols, 
6  Gratt.  592;  66  111.  447,  449; 
Eidington  v.  Chase,  34  Cal.  666;  but 
Bee  also  Mason  v.  Sudam,  2  John. 
Ch.  172;  Tiffany  v.  St.  John,  5Lans. 
153;  65  N.  Y.  314. 

4  Tiffany  v.  St.  John,  65  N.  Y.  314. 
In  this  case  D wight,  C,  said:  "  There 
is,  undoubtedly,  a  stage  in  a  pro- 
ceeding in  an  action  where  property 
is  in  the  custody  of  the  law,  that  a 
tender  wiU  not  destroy  the  lien,  as 
that  might  interfere  with  the  proper 
disposition  of  the  case.  After  the 
action  is  over,  and  judgnrent  ob- 
tained, and  execvition  levied,  the 
case  becomes  clearly  assimilated  to 
tiiat  of  an  ordinaiy  lien;  and  if  ten- 
der is  made  and  not  accepted,  the 
lien  will  be  extinguished.  This  dis- 
tinction was  well  settled  as  far  back 
as  the  time  of  Lord  Coke,  and  is 
clearly  stated  in  the  Six  Carpenters' 
Case    (8    Coke,    146a).      The    point 


there  discussed  was,  the  effect  of  a 
tender  in  the  case  of  a  distress  for 
rent,  or  of  cattle  doing  damage  — 
an  instance  of  a  lien  created  by  the 
act  of  the  law.  Coke  considers  the 
distinction  between  a  tender  made 
upon  the  land  before  distress,  after 
the  distress  and  before  impounding, 
after  impounding  and  before  the  de- 
termination of  the  litigation,  and 
contrasts  these  with  a  tender  made 
after  the  law  has  determined  the 
rights  of  the  parties.  He  says: 
'  Note,  reader,  this  difference;  that 
tender  upon  the  land  before  the  dis- 
tress makes  the  distress  tortious; 
tender  after  the  distress  and  before 
the  impounding,  makes  the  detainer, 
and  not  the  taking,  wrongful;  ten- 
der after  the  impounding  makes 
neither  one  nor  the  other  wrongful, 
for  then  it  comes  too  late,  because 
then  tlie  cause  is  put  to  the  trial  of 
the  law,  to  be  there  determined. 
But  after  the  law  has  determined 
it,  and  the  avowant  has  return  ir- 
replevisable, yet  if  the  plaintiff 
makes  him  a  sufficient  tender,  he 
may  have  an  action  of  detinue  for 


TENDER. 


473 


A  plea  of  tender  slioukl  couclude  by  praying  judgment 
whether  the  plaintiff  ought  to  recover  any  damages  by  reason 
of  the  non-payment  of  the  sum  alleged  to  have  been  tendered.^ 
If,  upon  the  trial,  the  sum  tendered  and  brought  into  court  is 
found  by  the  jury  to  be  less  than  was  due  at  the  time  of  the 
tender,  the  verdict  and  judgment  should  be  for  the  whole 
amount  of  the  plaintiff's  demand,  without  any  deduction  on 
account  of  the  money  brought  into  court.  The  defendant, 
however,  is  entitled  to  the  benefit  of  the  payment  by  indorse- 
ment upon  the  judgment  or  execution.^ 


the  detainer  after,  or  he  may,  upon 
satisfaction  made  in  court,  have  a 
writ  for  the  redelivery  of  his  goods.' 
He  adds:  '  And  thei'ewith  agree  all 
the  books,  and  Pelkington's  Case,  in 
the  fifth  part  of  my  reports  (fol.  76), 
and  so  all  the  books,  which,  prima 
facie,  seem  to  disagree,  are,  upon 
full  and  pregnant  reason,  well 
reconciled  and  agreed.' 

"  There  is  here  a  clear  statement 
of  the  principle  appUcable  to  the 
case  at  bar.  Here  the  law  has  al- 
ready determined  the  right  which 
has  became  final  in  analogy  to  the 
'  return  irrei^levisable '  of  Lord 
Coke,  and  the  tender  having  been 
made  and  refused,  if  it  were  suffi- 
cient in  amount,  an  action  of  re- 
plevin in  tlie  detinet,  will  lie  in 
analogy  to  the  action  of  detinue  re- 
ferred to  b}'-  hun.  It  should  also  be 
observed  that  Lord  Coke's  rule  pro- 
vides that  the  owner  of  goods  has 
his  election  to  make  an  application 
to  the  court  for  relief. 

"  The  defendant  cites  in  opposi- 
tion to  these  views,  the  case  of  Jack- 
son V.  Law,  5  Cow.  248;  S.  C.  9  id. 
641.  That  case,  however,  has  no 
bearing  upon  the  present  con- 
troversy. The  point  there  decided 
was,  that  a  tender  of  money  due 
upon  a  judgment,  by  a  junior  judg- 
ment creditor,  did  not  discharge  it, 
nor  take  away  the  Uou  of  the  senior 
judgment  creditor  upon  lands,  but 


that  the  latter  might  still  redeem 
upon  his  judgment  within  the  terms 
of  the  statute  applicable  to  that  sub- 
ject. The  ground  of  this  decision 
briefly  was,  that  a  judgment,  being 
a  debt  of  record,  is  not  discharged 
by  a  tender,  and  it  is,  in  no  case, 
the  efl:ect  of  a  tender  to  discharge 
the  debt.  The  judgment  could  only 
be  extinguished  by  actual  satisfac- 
tion. As  long  as  it  remained  in 
force,  it  must,  by  its  very  nature,  as 
prescribed  by  statute,  be  a  lien  on 
the  land.  If  its  existence  continued 
it  could  not  be  deprived  of  its  ordi- 
nary and  usual  characteristics.  The 
case  is  very  different  with  a  pledge 
or  mortgage,  or  lien  of  any  kind  col- 
lateral to  the  debt.  To  this  class  of 
collateral  liens  an  execution  be- 
longs, and  on  general  principles  a 
tender  destroys  it.  Even  in  the 
case  of  a  judgment  a  tender  may  have 
such  an  effect  as  to  make  it  inequi- 
table to  enforce  the  lien;  and  a  court 
of  equity  may  set  aside  a  sale  under 
it  as  irregular  and  void.  Mason  v. 
Sudam,  J.  Ch.  172."  See  Croner  v. 
Philling,  6  D.  &  R.  129. 

iKarthaus  v.  Owings,  6  Har.  & 
John,  134. 

2Daken  v.  Dunning,  7  HiU,  30; 
Huntington  v.  Zeigler,  2  Ohio,  10; 
Bennett  v.  Odom,  30  Ga.  940;  Baker 
V.  Gasque,  3  Strobh.  25;  Reed  v. 
Woodman,  17  Me.  43;  1  Tidd's  Pr. 
569. 


4:74:  CONVENTIONAL   LIQUIDATIONS    AND   DISCHAKGES. 

Paying  money  into  coukt. —  A  practice  was  introduced  into 
England  in  the  time  of  Charles  II  of  paying  money  into  court, 
where  no  previous  tender  had  been  made.  This  practice  is 
supposed  to  have  been  adopted  to  avoid  the  hazard  and  difficulty 
of  pleading  a  tender.^  The  money  was  paid  in  on  a  rule  of 
court,  and  thereafter  the  plaintiff  proceeded  for  more  at  the 
hazard  of  paying  subsequent  costs.  The  amount  paid  in  was 
stricken  from  the  declaration,  and  no  evidence  given  of  that 
part  of  the  claim.^  It  M^as  at  first  required  to  be  paid  in  before 
plea,  but  was  later  allowed  afterwards  by  withdrawing  the  plea. 
The  rule  allowing  the  defendant  to  pay  money  into  court  was 
granted  generally  on  condition  of  paying  costs,  directing  that 
sum  to  be  stricken  out  of  the  declaration,  if  refused  by  the 
plaintiff,  and  for  that  sum  that  no  evidence  be  received  on  the 
trial.  This  reduced  the  coutrovers}^  to  the  quantum  of  damages ; 
and  the  consequence  was  that  if  the  plaintiff  did  not  prove  a 
greater  sum  due  than  that  paid  in,  a  verdict  passed  for  the 
defendant,  and  he  had  judgment  for  subsequent  costs.  If  the 
plaintiff  proved  that  more  was  due,  he  had  a  verdict  and  judgment 
for  the  balance  and  subsequent  costs.^  The  payment  of  money 
into  court  was  proved  by  production  of  the  rule.^  But  when 
the  tender  is  found  sufficient  and  the  money  has  been  brought 
into  court,  the  verdict  should  be  for  the  defendant.^ 

13  Arch.  Pr.  199;  Boydenv.  Moore,  into  court  a  sum  of  money  sufficient 

Adm'r,  5  Mass.  365;  Reed  v.  Wood-  to    satisfy   all    the    damages    the 

man,  17  Me.  43.  plaintiff  could  have  recovered  under 

2  Id.  the  original  declaration,  and  costs  to 

3 1  Bac.  Abr.  473c.     See  Ruble  v.  the  time  of  such  payment,  and  the 

Murray,  4  Hayw.  284.  plaintiff    took  the  money;    it    was 

^Id.  held  that  in  the  absence  of  proof 

5  Pennypacker    v.     Umberger,     2  that  the  plaintiff  took  the  money  in 

Pa.   St.   493.     In  Hill  v.  Smith,  34  satisfaction  of  his  claim,  he  Tvas  not 

Vt.  535,  the  defendant,   before  the  thereby  precluded  from  filing  new 

new  counts,  upon  Avhich  alone  the  counts,  and  recovering  an  additional 

plaintiff  recovered,  were  filed,  x)aid  sum  thereon. 


stipulated  damages.  475 

Section  6. 

stipulated  damages. 

Contracts  to  liquidate  damages  valid  —  Damages  can  be  liquidated  only  on 
valid  contracts  —  Modes  of  liquidating  damages  —  Alternative  con- 
tracts —  Liquidated  damages  as  distinguished  from  penalty  —  Evidence 
and  effect  of  intention  to  liquidate  damages  —  Stipulated  sum  where 
damages  otherwise  certaAn  or  uncertain  —  Contracts  for  payment  of 
mo7iey  —  Large  sum  to  secure  payment  of  a  smaller  —  Stipulation  where 
damages  cei^tain  and  easily  proved  —  Stipulation  favorably  considered 
where  damages  uncertain  —  Where  gross  sum  fixed  for  any  partial 
breach  or  total  breach  —  Effect  of  part  verformance  accepted  where 
damages  liquidated  —  Liquidated  damages  are  in  lieu  of  performance. 

Contracts  to  liquidate  damages  valid. —  After  damages 
have  been  sustained,  an  agreement  to  pay  such  sum  therefor  as 
shall  be  ascertained  in  a  particular  way,  is  binding.^  And  par- 
ties in  making  contracts  are  at  hberty  to  stipulate  the  amount 
which  shall  be  paid  by  either  party  to  the  other  as  compensa- 
tion for  the  anticipated  actual  loss  or  injury  which  they  fore- 
see or  concede  will  result  from  a  breach  if  it  should  occur.- 
The  sum  which  they  so  fix  becomes,  on  the  happening  of  the 
event  on  which  its  payment  depends,  the  precise  smn  to  be  re- 
covered, and  the  jury  are  confined  to  it.^  l^ov  will  equity 
relieve  from  the  payment  of  it.* 

Damages  can  be  liquidated  only  on  a  valid  contract. —  A 
vahd  contract  must  exist  on  which  damages  could  be  recovered. 
If  void  for  not  being  in  writing,^  or  if  impeached  for  fraud,^  the 
stipulation  for  damages  will  share  the  fate  of  the  contract.  And 
it  has  been  held  that  an  agreement  to  pay  a  sum  as  liquidated 
damages  in  case  a  court,  in  which  an  action  was  pending,  should 
fail  to  make  an  order  containing  a  specified  provision,  is  void, 
for  being  against  public  policy,  or  of  the  nature  of  a  wager.'' 

iLongridge  v.   Dorville,    5   B.    &  4  2  Story's  Eq.  §  1318;  3  Lead.  Cas. 

Aid.  117.     See  Hosmer  v.  True,  19  in  Eq.  671  et  seq.;    Westerman  v. 

Barb.  106.  Means,    12  Pa.    St.   97;  Downey  v. 

2  Holmes  v.  Holmes.  12  Barb.  137.  Beach,  78  111.  53. 

3 Id.;  Lowe  v.  Peer,  4  Buit.  2225;  sscott  v.  Bush,  26  Mch.  418. 

Beal  V.  Hayes,  5  Saudf.  640;  Tarde-  ewaraberg  v.  Bimer,  25  Ind,  368. 

veau  V.  Smith's  Ex'rs,  Hardin,  175.  '  Cowdrey  v.  Caipenter,    1   Eobt. 

See  Bradsliaw  v.  Craycrof t,  3  J.  J.  429.     A  party  to  an  action  for  the 

Marsh.  79.  foreclosure  of  a  mortgage  of  real 


4T6 


CONYENTIONAL   LIQUIDATIONS   AND   DISCHARGES. 


Modes  of  liquidating  damages. —  The  stipulation  for  the  ad- 
justment of  the  amount  of  damages  is  usually  embraced  in  the 
contract  for  the  violation  of  which  such  damages  are  to  be 
paid ;  but  it  is  not  always  so.  A  deposit  may  be  made  with  a 
third  person,  or  with  the  party,  of  money,  a  note,  or  something 
else  of  value,  to  be  paid  or  delivered  over  or  retained  on  the 
happening  of  the  breach.^  Agreements  are  of  this  nature  and 
vahd  which  provide  a  particular  method  of  proof ;  as  that  prop- 
erty covered  by  insurance  and  afterwards  destroyed  by  fire 


estate  on  assigning  a  junior  mort- 
gage of  only  a  part  of  the  premises, 
stipulated  with  his  assignee  that  the 
order  of  sale  should  direct  the  prop- 
erty not  covered  by  the  junior 
mortgage  to  be  first  sold  for  the 
payment  of  the  mortgage  being 
foreclosed,  and  it  was  held  that  the 
stipulation  being  void,  the  assignee 
could  not  recover  the  liquidated 
damages  specified  in  it,  upon  its 
breach,  by  the  making  of  an  order 
vpithout  the  designated  provision. 

iLee  V.  Whitaker,  21  W.  R.  230; 
27  L.  J.  N.  S.  676;  Law  R.  8  C.  P. 
70;  Swift  V.  Powell,  44  Ga.  123;  Kel- 
logg V.  Curtis,  9  Pick.  634;  Still  well 
V.  Temple,  28  Mo.  156;  Reilly  v. 
Jones,  1  Bing.  302;  Betts  v.  Burch, 
4  H.  &  N.  506;  Hunton  v.  Sparkes, 
L.  R.  3  C.  P.  160.  In  White  v. 
Dingley,  4  Mass.  433,  the  plaintiff 
had  given  the  defendant  a  letter  of 
license  for  two  years,  and  covenanted 
not  to  sue  him  within  that  time,  and 
that  if  he  should  sue  him  he  should 
be  whoUy  discharged  from  the  claim. 
The  creditor  brought  suit  in  viola- 
tion of  the  covenant,  and  the  debtor 
was  imprisoned  upon  the  writ, 
whereupon  he  brought  suit  upon 
the  covenant  for  damages.  It  was 
held  that  the  action  could  not  be 
maintained;  that  the  forfeiture  was 
a  liquidation  of  the  damages.  Up- 
ham  V.  Smith,  7  Mass.  265. 


In  an  action  to  recover  damages 
for  breaking  up  a  highway,  the  de- 
fendant gave  the  plaintifiC  a  cognovit 
to  confess  judgment  for  £200,  with 
a  defeasance  that  no  execution 
should  issue,  if  the  defendant, 
within  a  Limited  time,  should  rein- 
state the  road  according  to  certain 
specifications.  The  road  not  being 
completely  reinstated  within  the 
time  prescribed,  the  plaintiff  sued 
out  execution  and  levied  the  £200 
and  costs.  Held,  that  the  £200  was  in 
the  nature  of  a  penalty,  and  not  of 
stipulated  damages;  and  the  court 
referi'ed  it  to  a  prothonotary  to  as- 
certain what  damages  the  plaintiff 
had  actually  sustained,  and  what 
sum  he  was  entitled  to  recover  from 
the  defendant  for  his  failure  to  re- 
instate the  road.  Charrington  v. 
Loing,  3  M.  &  S.  587.  Where  the 
intention  of  the  parties  is  potential, 
the  circumstance  that  the  sum  is  de- 
posited with  a  stakeholder,  to  be 
paid  over,  or  in  the  hands  of  the 
opposite  party,  with  stipulation  that 
it  is  to  be  forfeited,  in  the  event  of 
a  breach,  is  pointed  out  as  stronger 
evidence  of  an  intention  to  make  it 
liquidated  damages  than  the  words 
or  nature  of  the  contract  otherwise 
would.  IMagee  v.  Lavell,  L.  R.  9  C. 
P.  107;  Betts  v.  Burch,  4  H.  &  N. 
506;  Hinton  v.  Sparkes,  L.  R.  3  C.  P. 
160. 


STIPULATED   DAMAGES.  477 

shall  be  estimated  by  a  particular  standard,^  or  estimated  by  a 
particular  person.^ 

Alternative  conteacts. —  These  are  such,  as  by  their  terms 
may  be  performed  by  doing  either  of  several  acts  at  the  elec- 
tion of  the  party  from  whom  performance  is  due.  Perform- 
ance in  one  of  the  modes  is  a  performance  of  the  entire  con- 
tract, and  no  question  of  damages  arises.  Such  a  contract, 
therefore,  is  not  one  for  hquidated  damages. 

Where,  by  the  condition  of  a  bond,  the  obligor  might,  by 
paying  $600  in  twelve  months,  or  $400  in  six  months,  become 
the  owner  of  a  certain  patent  right  for  a  specified  district ;  or 
otherwise  should  account  for  a  certain  share  of  the  profits,  he 
had  a  choice  of  those  alternatives  for  those  periods.^  Stipulat- 
ing the  damages  and  promising  to  pay  them  in  case  of  a  de- 
fault in  the  performance  of  an  otherwise  absolute  undertaking, 
does  not  constitute  an  alternative  contract.*  The  promisor  is 
bound  to  perform  his  contract,  though  there  is  generally  a 
practical  option  to  violate  it  and  take  the  consequences;  but  he 
is  entitled  to  no  election  to  pay  the  hquidated  damages  and 
thus  discharge  himself.  A  party  agreed  to  pay  three  hundred 
and  fifty  dollars  for  certain  real  estate,  and  paid  down  a  smaU 
part.  On  full  performance  the  promisee  was  to  procure  for  the 
promisor,  as  purchaser,  a  deed  from  a  third  person;  it  was  also 
agreed  between  the  parties  that  if  the  purchaser  should  fail  to 
perform  the  contract,  or  any  part  of  it,  he  should  pay  the  other 
party  twenty-five  dollars,  as  liquidated  damages,  and  immedi- 
ately surrender  possession.  A  tender  of  twenty-five  dollars 
and  possession  was  made  before  suit  brought  for  the  remain- 
der of  the  purchase  money,  and  it  was  contended  in  behalf  of 
the  purchaser,  but  without  success,  that  he  was  entitled  by  the 

i^tna  Ins.    Co.   v.   Johnson,    11  Vt.  757;  The  City  Bank  v.  Smith,  3 

Bush,  587;  Commonwealth  Ins.  Co.  Gill  &  J.  565. 

V.  Sennett,  37  Pa.  St.  208;  Lycoming  3  McNitt    v.  Clark,    7  John.   465; 

Ins.  Co.  V.  Mitchell,  48  Pa.  St.  369;  Fisher  v.  Shaw,  42  Me.  32;  Slawson 

Bodine  v.   Glading,   21  Pa.  St.  50;  v.  Beadle,  7  John.  72;  Mercer  v.  Ir- 

Irving  V.  Manning,  6  C.  B.  391.  ving,  1  E.  B.  &  E.  563;  Reynolds  v. 

2Fauncev.  Burke,  16  Pa.  St.  479;  Bridge,   6  E.    &  B.  528;  Choice   v. 

Robinson  v.  Cropsey,   5  Edw.  Ch.  Mosely,  1  Bailey,  136. 

138;  Wells  V.  Smith,  2  Edw.  Ch.  78;  4  Stewart    v.    Bedel,    79    Pa.    St. 

Barrett  v.  The  Pasumpsit  T.  Co.  15  336. 


478  CONVENTIONAL    LIQUIDATIONS    AND   DISCHARGES. 

terms  of  the  contract  to  relieve  himself  by  those  acts  from  its 
obligation.^ 

A  court  of  equity  may  enforce  performance,  or  enjoin  those 
acts  that  would  be  a  violation ;  ^  but  in  such  cases  the  equitable 
is  an  elective,  not  a  cumulative,  remedy.  Before  granting 
such  relief,  equity  will  require  the  plaintiff  to  forego  the  legal 
claim  to  the  stipulated  damages.^ 

Liquidated  damages  contradistingutshed  ekom  penalty. — 
The  m!>st  important  and  difficult  question  in  respect  to  a  sum 
stated  in  connection  with  a  breach  of  contract  is  whether  it  is 
liquidated  damages  ot penalty.  If  the  latter,  it  is  not  an  actual 
debt;  it  cannot  be  recovered,  but  only  the  actual  damages 
which  have  to  be  proved,  and  the  statement  of  it  in  the  con- 
tract is  of  very  little  consequence.  If  the  former,  it  is  the  pre- 
cise sum  to  be  recovered  on  proof  of  a  breach  of  the  undertak- 
ing to  which  it  refers,  and  no  proof  of  the  manner  and  extent 
of  the  real  injury  is  necessary.*  The  decision  of  this  question 
is  often  intrinsically  difficult,  for  judicial  opinions,  in  the 
numerous  cases  on  the  subject,  are  very  inharmonious;  they 
furnish  no  universal  test  or  guide.  But,  as  was  said  by  Chris- 
tiancy,  J.,  "While  no  one  can  fail  to  discover  a  very  great 
amount  of  apparent  conflict,  still  it  will  be  found  on  examina- 
tion that  most  of  the  cases,  however  conflicting  in  appearance, 
have  yet  been  decided  according  to  the  justice  and  equity  of 
the  particular  case."  ^ 

lAyers  v.  Pease,  12  Wend.   393;  Jewett,   4   Robt.   714;    Robeson   v. 

The  PhcBnix  Ins.  Co.  v.  The  Centen-  Whitesides,  16  S.  &  R.  320;  Robin- 

nial  Ins.  Co.  14  Abb.  N.  S.  266;  Long  son    v.    Bakewell,   25    Pa.    St.   424; 

V.  Bowring,  33  Beav.    585;  Howard  Cartwright  v.  Gardner,  4  Cush.  273. 

V.   Hopkins,    2    Atk.    371;    Dike  v.  2  id. 

Green,  4  R.  I.  285;  Dooley  v.  Wat-  3  Howard  v.  Hopkins,  2  Atk.  245; 

son,  1  Gray,  414;  Gray  v.  Crosby,  18  1  Story's  Eq.  §§  717a,  793/;  3  Par.  on 

John.   219;  Sainter  v.    Ferguson,    7  Cont.  356,  note  q;  Gordon  v.  Brown, 

C.  B.  716;  Hobson  v.  Trevor,  2  P.  4  Ired.  Eq.  399;  Dooley  v.  Watson, 

Wms.  191;  Chilliuer  v.  ChiUiner,  2  1  Gray,  414;  French  v.  Marcel,  2  D. 

Ves.   Sr.  528;  Ingledew  v.  Cupp,  2  &    W.   269;    Long    v.    Bowring,   83 

Ld.  Raym.  814;  Preble  v.  Baghurst,  Beav.  585;  10  Jur.  N.  S.  683;  12  W. 

1  Swanst.  580;  Slowman  v.  Walter,  R.  972. 

1    Brown    Ch.    418;    Lampman    v.  ^  Spicor  v.  Hoop,  51  Ind.  365. 

Cochran,    16    N.   Y.    275;   Ward  v.  &  Jaqueth  v.  Hudson,  5  Mich.  123. 


STIPULATED    DAMAGES.  i79 

It  has  been  often  declared  judicially  tliat  a  stipulation  in  a 
contract  for  the  payment  of  a  stated  sum,  in  the  event  of  a 
breach,  should  be  interpreted,  like  all  its  other  provisions,  with 
a  view  to  carrying  into  effect  the  intention  of  the  parties. 
Referring  to  this  subject,  Kelson,  C.  J.,  said :  "  A  court  of  law 
possesses  no  dispensing  power;  it  cannot  inquire  whether  the 
parties  have  acted  wisely  or  rashly  in  respect  to  any  stipulation 
they  may  have  thought  proper  to  Introduce  into  their  agree- 
ments. If  they  are  competent  to  contract,  within  the  pruden- 
tial rules  the  law  has  fixed  as  to  parties,  and  there  has  been  no 
fraud,  circumvention  or  illegality  in  the  case,  the  court  is  bound 
to  enforce  the  agreement."  ^  Best,  C.  J.,  at  JVisi  JPrius,  said : 
"  The  law  relative  to  liquidated  damages  has  always  been  in  a 
state  of  great  uncertainty.  This  has  been  occasioned  by  judges 
endeavoring  to  make  better  contracts  for  parties  than  they  have 
made  for  themselves.  I  tliink  that  parties  to  contracts,  from 
knowing  exactly  their  own  situations  and  objects,  can  better 
appreciate  the  consequences  of  their  failing  to  obtain  those 
objects,  than  either  judges  or  juries.  Whether  the  contract  be 
under  seal  or  not,  if  it  states  what  shall  be  paid  by  the  party 
who  breaks  it  to  the  party  to  whose  prejudice  it  is  broken,  the 
verdict  in  the  action  for  the  breach  of  it  should  be  for  the  stipu- 
lated sum.  A  court  of  justice  has  no  more  authority  to  put  a 
different  construction  on  the  part  of  the  instrument,  ascertain- 
ing the  amount  of  damages,  than  it  has  to  decide  contrary  to 
any  other  of  its  clauses."  ^  Equally  emphatic  language  is  to  be 
found  in  many  other  cases.' 

But  such  views  have  but  a  limited  practical  apphcation. 
And  cases  abound  in  which  strong  language  of  a  different  tenor 
is  employed.  "  They  mistake,"  says  Scott,  J.,  "  the  object  and 
temper  of  our  system  of  jurisprudence,  who,  while  maintaining 
that  men  in  making  all  contracts  have  a  right  to  stipulate  for 
liquidated  damages  regardless  of  the  disproportion  to  the  sum 
resulting  from  a  breach  of  the  contract,  insist  that  it  would  be 
hard  if  men  were  not  permitted  to  make  tlieir  own  bargains. 
Xo  system  of  laws  would  command  our  respect,  or  secure  our 

iDakin  v.  ■Williams,  17  Wend.  ^Dwinell  v.  Brown,  54  Me.  460; 
447.  Brewster  v.  Edgerly,  13  N.  H.  275; 

2Crisdee  v.  Bolton,  3  C.  &  P.  240.      Clement  v.  Cash,  21  N.  Y.  253. 


480  CONVENTIONAL    LIQUmATIONS    AND   DISCHARGES. 

willing  obedience,  which  did  not  to  some  extent  provide  against 
the  mischiefs  resulting  from  improvidence,  carelessness,  inex- 
perience and  undue  expectations  on  one  side,  and  skill,  avarice 
and  a  gross  violation  of  the  principles  of  honesty  and  fair  deal- 
ing on  the  other.  Tlie  folly  of  one  making  a  wild  and  reckless 
stipulation  will  not  justify  gross  oppression  in  another.  A  just 
man,  when  he  sees  one  in  a  situation  in  which  he  is  prepared  to 
make  a  contract  which  must  grind  and  oppress  him,  will  not 
take  advantage  of  his  state  of  mind  and  enrich  himself  by  his 
foUy  and  want  of  experience.  It  has  been  remarked  that  in 
reason,  in  conscience,  in  natural  equity,  there  is  no  ground  to 
say  because  a  man  has  stipulated  for  a  penalty  in  case  of  his 
omission  to  do  a  particular  act, —  the  real  object  of  the  parties 
being  the  performance  of  the  act  —  that  if  he  omits  to  do  the 
act  he  shall  suffer  an  enormous  loss,  wholly  disproportionate  to 
the  injury  to  the  other  party."  ^ 

The  intention  of  parties  on  this  subject,  under  the  artificial 
rules  that  have  been  adopted,  is  determined  by  very  latitudinary 
construction.  To  be  potential  and  controlling  that  a  stated 
sum  is  liquidated  damage,  that  sum  must  be  fixed  as  the  basis 
of  compensation  and  substantially  limited  to  it ;  for  just  com- 
pensation is  recognized  as  the  universal  measure  of  damages  not 
punitory.  Parties  may  liquidate  the  amount  by  previous  agree- 
ment. But  when  a  stipulated  sum  is  evidently  not  based  on 
that  principle,  the  intention  to  liquidate  damages  will  either  be 
found  not  to  exist,  or  ^Yill  be  disregarded,  and  the  stated  sum 
treated  as  a  penalty.  Contracts  are  not  made  to  be  broken ; 
and  hence,  when  parties  provide  for  consequences  of  a  breach, 
they  proceed  with  less  caution  than  if  that  event  was  certain, 
and  they  were  fixing  a  sum  absolutely  to  be  paid.  Tlie  inten- 
tioii  in  all  such  cases  is  material ;  but  to  prevent  a  stated  sum 
from  being  treated  as  a  penalty,  the  intention  should  be  apparent 
to  liquidate  damages  in  the  sense  of  making  just  compensation ; 
it  is  not  enough  that  the  parties  express  the  intention  that  the 
stated  sum  shall  be  paid  in  case  of  a  violation  of  the  contract.  A 
penalty  is  not  converted  into  hquidated  damages  by  the  intention 
that  it  be  paid ;  it  is  intrinsically  a  different  thing,  and  the  inteii- 

1  Basyl  V.  Ambrose,  28  Mo.  39;  Jaqueth  v.  Hudson,  5  Mich.  123. 


STIl'LLATED    D^UIAGES. 


461 


tion  that  it  be  paid  cannot  alter  its  natui-e.  A  bond,  literally 
construed,  imports  an  intention  that  the  penalty  shall  be  paid  if 
there  be  default  in  the  performance  of  the  condition ;  and  for- 
merly that  was  the  legal  eifect.  Courts  of  law,  now,  ho\vever, 
administer  the  same  equity  to  relieve  from  penalties  in  other 
fonns  of  contract  as  from  those  in  bonds.  The  evidence  of  an 
intention  to  measure  the  damage,  therefore,  is  seldom  satisfac- 
tory when  the  amount  stated  varies  materially  from  a  just 
estimate  of  the  actual  loss  finally  sustained.^ 


iScofic4d  V.  Tompkins,  95  VI  190; 
Myer  v.  Hurt,  40  Mich.  517. 

In  Pierce  v.  Jung,  10  Wis.  30, 
Paine,  J.,  said:  "The  opinions  on 
this  subject  are  conflicting.  On  the 
one  liand,  they  lean  towards  treat- 
ing sucli  provisions  as  in  the  nature 
■of  penalties,  and  to  do  so,  have 
sometimes  disregarded  the  positive 
and  implicit  language  of  the  parties. 
On  the  other,  tliey  go  for  upholding 
conti'acts  as  made,  treating  the 
parties  as  equally  competent  to  pro- 
vide for  the  amount  of  damages  to 
be  paid,  in  case  of  a  failure  to  per- 
form, as  to  determine  any  otlier 
matter  contained  in  them.  The 
case  of  Asliley  v.  Welden,  2  Bos.  & 
Pul.  346,  and  Kemble  v.  Farren,  6 
Bingh.  141,  are  strong  illustrations 
of  the  first  class;  and  in  Crisdee  v. 
Butler,  3  Car.  &  Payne,  240,  the  op- 
posite doctrine  is  very  clearly  stated. 
But  even  the  first  class  of  cases  con- 
cede the  power  of  the  parties  to 
liquidate  tlie  damages  by  tlieir  agree- 
ment in  case  of  a  non-performance. 
And  they  profess  also  to  go  upon 
the  intention  of  the  parties.  And 
perhaps  the  only  real  difference 
between  the  two,  is  that  the  former 
take  greater  liberties  than  the  latter 
with  the  words  of  the  parties,  in  de- 
termining what  the  intention  is. 
Tliey  pay  more  attention  to  the  whole 
nature  and  object  of  the  agreement, 
than  to  the  precise  words,  in  de- 
VOL.  1  —  31 


termining  whether  the  intent  was 
to  create  a  penalty,  or  provide  for 
liquidated  damages." 

In  Beale  v.  Hayes,  5  Sandf.  640, 
Duer,  J.,  said:  "It  is  not  always, 
however,  that  damages  are  to  be 
construed  as  liquidated  because  the 
parties  have  declared  them  to  be  so. 
The  language  of  the  parties  to  (the 
agreement  in  question)  is  clear  and 
emphatic  that  the  sum  of  £3,000 
shall  be  recoverable  f  I'om  the  party 
making  default  as  and  for  liquidated 
damages;  yet  no  court  of  justice, 
without  an  entire  disregard  of  jjrior 
decisions,  can  give  effect  to  the  ap- 
parent intention  of  the  parties,  by 
adopting  that  construction  of  their 
agreement,  wliich  the  terms  they 
liave  used  so  forcibly  suggest.  .  .  . 
When  consequences  so  unreasonable 
would  follow,  the  law  presumes 
tliat  tliey  must  have  been  overlooked 
by  the  parties,  and  therefore  merci- 
fully gives  to  their  language  an  in- 
terpretation which  excludes  them. 
When  it  would  be  plainly  uncon- 
scientious to  exact  a  large  sum  for  a 
trivial  breach,  even  a  court  of  law, 
acting  upon  a  principle  of  equity, 
will  release  the  parties  from  the  lit- 
eral obligation  which  their  language 
imports." 

In  Jaqueth  v.  Hudson,  5  Mich. 
123,  Christiancy,  J.,  said:  "It  is 
true,  the  courts  in  nearly  all  these 
cases  profess  to  be  construing  the 


482 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


contract  witli  reference  to  the  inten- 
tion of  tlie  i3arties,  as  if  for  tlae  pur- 
pose of  ascertaining  and  giving 
effect  to  tliat  intention;  yet  it  is  ob- 
vious, from  these  cases,  that  where- 
ever  it  has  appeared  to  the  court, 
from  the  face  of  the  contract  and 
the  subject  matter,  that  the  sum  was 
clearly  too  large  for  just  compensa- 
tion, here,  while  they  will  allow  any 
form  of  words,  even  tliose  express- 
ing the  direct  contrary,  to  indicate 
the  intent  to  make  it  a  penalty;  yet 
no  form  of  words,  no  force  of  lan- 
guage, is  comi^etent  to  the  expres- 
sion of  the  opposite  intent.  Here, 
then,  is  an  intention  incapable  of 
expression  in  words;  and  as  all 
written  contracts  must  be  expressed 
in  M'ords,  it  would  seem  to  be  a 
mere  waste  of  time  and  effort  to 
look  for  such  an  intention  in  such  a 
contract.  And  as  the  question  is 
between  two  opposite  intents  only, 
and  the  negation  of  one  necessarily 
implies  the  existence  of  the  other, 
there  would  seem  to  be  no  room 
left  for  construction  with  reference 
to  the  intent.  It  must,  then,  be 
manifest  that  the  intention  of  the 
parties  in  such  cases  is  not  the  gov- 
erning consideration. 

"But  some  of  the  cases  attempt  to 
justify  this  mode  of  construing  the 
contract  with  reference  to  the  intent, 
by  declaring,  in  substance,  that 
though  the  language  is  the  strongest 
which  could  be  used  to  evince  the 
intention  in  favor  of  stipulated  dam- 
ages, still,  if  it  appear  clearly,  by 
reference  to  the  subject  matter,  that 
the  parties  have  made  the  stipulation 
witliout  reference  to  the  principle  of 
just  compensation,  and  so  excessive 
as  to  be  out  of  all  proportion  to  the 
actual  damage,  the  court  must  hold 
that  they  could  not  have  intended  it 
as  stipulated  damages,  thovigh  they 
have  so  expressly  declared.    See,  as 


an  example  of  this  class  of  cases, 
Kemble  v.  Farren,  6  Bing.  141. 

"  Now  this,  it  is  true,  may  lead  to 
the  same  result,  in  the  particular 
case,  as  to  have  placed  the  decision 
upon  the  true  ground,  viz.:  that 
though  the  parties  actually  intended 
the  sum  to  be  paid,  as  the  damages 
agreed  between  them,  yet  it  being 
clearly  unconscionable,  the  court 
would  disregard  the  intention,  and 
refuse  to  enforce  the  stipulation. 
But,  as  a  rule  of  construction  or 
interpretation  of  contracts,  it  is 
radically  vicious,  and  tends  to  a  con- 
fusion of  ideas  in  the  consti'uction 
of  contracts  generally.  It  is  this, 
more  than  anything  else,  which  has 
produced  so  much  apparent  conflict 
in  the  decisions  upon  this  whole 
subject  of  penalty  and  stipulated 
damages.  It  sets  at  defiance  all 
rules  of  interpretation,  by  denying 
the  intention  of  the  parties  to  be 
what  they,  in  the  most  unambiguous 
terms,  have  declared  it  to  be,  and 
finds  an  intention  directly  opposite 
to  that  which  is  clearly  expressed  — 
'  divinatio,  non  interpretatio  est, 
qucs  omnino  recedit  a  litera.^ 

"Again,  the  attempt  to  place  this 
question  upon  the  intention  of  the 
parties,  and  to  make  this  the  govern- 
ing consideration,  necessarily  im- 
plies that,  if  the  intention  to  make 
the  sum  stipulated  damages  shovdd 
clearly  appear,  the  court  would 
enforce  the  contract  according  to 
that  intention.  To  test  this,  let  it  be 
asked  whether,  in  such  a  case,  if  it 
were  admitted  that  the  parties 
actually  intended  the  sum  to  be  con- 
sidered as  stipulated  damages,  and 
not  as  penalty,  wovild  a  court  of  law 
enforce  it  for  the  amount  stii^ulated  ? 
Clearly,  they  could  not,  without 
going  back  to  the  technical  and 
long-exploded  doctrine,  which  gave 
the    whole    penalty    of    the   bond, 


STIPDLATED   DAiXIAGES. 


483 


without  reference  to  the  damages 
actually  sustained.  They  would 
thus  be  simply  changing  the  names 
of  things,  and  enforcing,  under  the 
name  of  stipulated  damages,  what 
in  its  oion  nature  is  but  a  penalty. 

"  The  real  question  in  this  class  of 
cases  will  be  found  to  be,  not  what 
the  parties  intended,  but  whether 
the  sum  is,  in  fact,  in  the  nature 
of  a  penalty;  and  this  is  to  be  deter- 
mined by  the  magnitude  of  the  sum, 
in  connection  with  the  subject 
matter,  and  not  at  all  by  the  words 
or  the  understanding  of  the  i)arties. 
The  intention  of  the  parties  cannot 
alter  it.  While  courts  of  law  gave 
the  jjenalty  of  the  bond,  the  parties 
intended  the  payment  of  tlie  penalty 
as  much  as  they  now  intend  the 
payment  of  stipulated  damages;  it 
must,  therefore,  we  tliink,  be  very 
obvious  that  the  actual  intention  of 
the  parties,  in  this  class  of  cases, 
and  relating  to  this  point,  is  whoUy 
immaterial;  and  tliough  the  coiu"ts 
have  veiy  generally  professed  to 
base  their  decisions  upon  the  inten- 
tion of  the  parties,  that  intention  is 
not,  and  cannot  be  made,  the  real 
basis  of  these  decisions.  In  en- 
deavoring to  reconcile  these  de- 
cisions with  tlie  actual  intention  of 
the  parties,  the  courts  have  some- 
times been  compelled  to  use  lan.guage 
wholly  at  war  with  any  idea  of  in- 
terpretation, and  to  say  'that  the 
parties  must  be  considered  as  not 
meaning  exactly  what  they  say.' 
Homer  v.  Flintoff,  9  M.  &  W.  678, 
per  Park,  B.  May  it  not  be  said, 
with  at  least  equal  propriety,  that 
courts  have  sometimes  said  wliat 
they  did  not  exacthj  mean?  The 
foregoing  remarks  are  all  to  be  con- 
fined to  that  class  of  cases  where  it 
was  clear,  from  the  sum  mentioned, 
and  the  subject  matter,  that  the 
principle  of  compensation  had  been 
disregarded." 


In  Dwinel  v.  Brown,  54  Me.  468, 
the  defendant  had  bound  himself,  in 
the  event  of  a  failure  to  perform 
each  and  every  condition  and  stipu- 
lation represented  in  a  certain  license 
and    agreement  for  carr>'ing  on  a 
lumbering     operation     upon      the 
plaintiff's    land,    "in  the  full  and 
liquidated    sum    of    one    thousand 
dollars,  well  and  truly  to  be  paid,.'"' 
on  demand,    "over  and  above   the- 
actual  damages"  which  should  be- 
sustained  by  the  non-performance. 
Dickerson,  J.,  said:  "The  question, 
pi-esented  for  our  determination  is,  . 
whether  the  sum  named  in  the  con- 
tract to  be  paid  by  the  defendant  on. 
his  failure  to  fulfil  its  conditions,  is 
penalty  or  Mquidated  damages. 

"  It  is  comijetent  for  the  parties, 
in  making  a  contract,  to  leave  the 
damages  arising  from  a  breach  of 
its  provisions,  to  be  determined  in  a 
court  of  law,  or  to  specify  the 
amount  of  such  damages  in  the  con- 
tract itself.  If  the  contract  is  silent 
in  respect  to  damages,  the  law  wUl 
allow  only  the  actual  or  proximate- 
damages.  In  order,  however,  tO' 
provide  for  consequential  damages 
or  seciu-e  the  profits  wliich  are  ex- 
pected to  arise  from  business,  or 
contracts  that  depend  upon  the  per- 
formance of  the  principal  contract, 
or  to  save  expense,  or  to  render  cer- 
tain what  would  otherwise  be  diffi- 
cult, if  not  impossible,  to  ascertain, 
it  is  sometimes  desirable  that  the 
contract  should  fix  the  amount  of 
the  damages.  If,  for  instance,  a 
party  has  a  contract  for  buUding  a 
ship  at  a  large  profit,  conditioned 
upon  his  having  lier  completed 
at  a  specified  time,  it  would  be  com- 
petent for  him,  in  contracting  for 
the  material,  to  make  tlie  damages, 
in  case  of  breach,  sufficient  to  cover 
his  prospective  profits  in  building 
the  ship.  While,  to  persons  unac- 
quainted with  the  circumstances  of 


484 


COISrVENTIOKAL    LIQUmATIONS    AND   DISCIIAKGES. 


tlie  case,  the  damages  stipulated  in 
such  a  contract  might  seem  greatly 
disj)roportionate  to  the  loss  sustained 
by  a  breach  of  it,  they  might,  in 
fact,  be  insufficient  to  indemnify 
the  party  against  the  loss  he  might 
sustain  by  being  prevented  from 
completing  the  ship  according  to  his 
contract.  The  i^arties  themselves 
best  know  what  their  expectations 
are  in  regard  to  the  advantages  of 
their  undertaking,  and  the  damages 
attendant  on  its  failure,  and  when 
they  have  mutually  agreed  upon  the 
amount  of  such  damages  in  good 
faith,  and  without  illegality,  it  is  as 
much  the  duty  of  the  court  to  en- 
force that  agreement  as  it  is  the 
other  provisions  of  the  contract. 
As  in  construing  the  other  parts  of 
the  contract,  so  in  giving  constinic- 
tion  to  the  stipulation  concerning 
damages,  the  intention  of  the  parties 
governs.  The  inquiry  is,  what  was 
the  understanding  of  the  parties; 
and  when  it  is  said,  in  judicial 
parlance,  that  certain  language  of 
the  parties  is  held  to  mean  liqui- 
dated damages,  and  certain  other 
language  a  penalty,  this  is  affirmed 
of  the  intention  of  the  pai'ties,  and 
not  of  the  construction  of  the  court, 
in  contradistinction  from  such  in- 
tention. It  is  the  province  of  the 
court  to  uphold  existing  contracts, 
not  to  make  new  ones.  It  is  not  for 
the  court  to  sit  in  judgment  upon 
the  wisdom  or  folly  of  the  parties  in 
making  a  contract,  when  their  in- 
tention is  clearly  expressed,  and 
there  is  no  fraud  or  illegality.  No 
judges,  however  eminent,  can  place 
themselves  in  the  place  or  position 
of  the  parties,  when  the  contract  is 
made,  scan  the  motives  and  weigh 
the  considerations  which  influenced 
them  in  the  transaction,  so  as  to  de- 
termine what  would  have  been  best 
for  them  to  do;  who  was  least 
sagacious,   or  who  drove  the  best 


bargain.  Courts  of  common  law 
cannot,  like  courts  where  the  civil 
law  prevails,  award  such  damages 
as  they  may  deem  reasonable,  but 
must  allow  the  damages,  whether 
actual  or  estimated,  as  agreed 
upon  by  the  parties.  The  bargain 
may  be  an  unfortunate  one  for  the 
delinquent  party,  but  it  is  not  the 
duty  of  courts  of  common  law  to  re- 
lieve parties  from  the  consequences 
of  their  own  improvidence,  where 
these  contracts  ai'e  free  from  fraud 
and  illegahty. 

"The  controversy  in  the  courts, 
whether  the  particular  language  of 
a  contract,  in  regard  to  damages,  is 
to  be  construed  as  a  penalty,  or 
liquidated  damages,  arises  mainly 
from  a  desire  to  relieve  parties  from 
what,  under  a  different  construction, 
is  assumed  to  be  an  inqjrudent  and 
absurd  agreement.  When,  however, 
it  is  considered  how  little  coui-ts 
know  of  the  modifying  circum- 
stances of  the  case,  how  far  the  par- 
ticular provision  was  framed  with 
reference  to  the  personal  feelings  of 
the  parties,  what  fluctuations  in  the 
market  were  anticipated  at  the 
time,  and  what  effect  the  contract  in 
question  was  expected  to  have  upon 
other  business  engagements  or  nego- 
tiations, theri.  is  perhaps  less  cause 
for  departing  from  the  literal  con- 
struction of  the  language  used  than 
might,  at  first  view,  be  supposed. 
These  considerations  should  at  least 
admonish  us  that,  in  straining  the 
language  of  a  contract  to  prevent  a 
seeming  disadvantage  to  one  of  the 
parties,  we  may  imjios^  upon  the 
other  party  the  very  hardships  which 
both  intended  to  pi'otect  him  against 
by  the  terms  of  their  agreement. 
The  interests  of  the  public  are  quite 
as  likely  to  be  subserved  in  main- 
taining the  inviolability  of  contracts 
as  they  are  in  contx'iving  Avays  and 
means  to  make  a   contract   mean 


STirULATED    DA3,IAGES. 


■iS5 


■what  is  not  apparent  upon  the  face 
of  it,  to  save  a  party  from  some  con- 
jectural inequity,  growing  out  of  his 
supposed  inadvertence  or  improvi- 
dence." The  learned  judge  states 
three  rules  upon  which  he  sa-j-s  the 
courts  are  substantially  agreed,  and 
the  </ttr(i  he  states  as  follows:  "If 
the  instrument  provides  for  the  pay- 
ment of  a  larger  sum  in  future  to 
pay  a  less  sum,  the  larger  wiU  be  re- 
garded as  penalty  in  respect  to  tlie 
excess  over  the  legal  interest,  what- 
ever the  language  used;  and  if  the 
contract  consist  of  several  stipu- 
lations, the  damages  for  the  breach 
of  which,  independently  of  the  sum 
named  in  the  instrument,  are  uncer- 
tain, and  cannot  well  be  ascertained, 
the  sum  agreed  upon  is  to  be  treated 
as  liquidated  damages.  Orr  v. 
Churchill,  1  H.  B.  227;  Astley  v. 
■VVelden,  2  B.  &  P.  346;  Mead  v. 
Wlieeler,  13  N.  H.  351;  Atkins  v. 
Keniiic-r,  4  Exch.  '776.     .     .     . 

"  In  the  case  at  bar,  the  defendant 
bound  himseK  '  in  the  full  and  liqui- 
dated sum  of  one  thousand  dollars, 
over  and  above  the  actual  damages,' 
in  the  event  of  his  failure  to  do  and 
perform  each  and  every  condition 
and  stipulation  in  his  contract.  Lan- 
guage can  scarcely  make  the  in- 
tention of  the  parties  to  fix  the 
amount  of  the  damages  more  clear 
and  empliatic.  The  sum  is  not  only 
'liquidated,'  but,  as  if  to  exclude 
aU  possibility  of  its  being  a  penalty, 
it  is  declared  to  be  '  over  and  above 
the  actual  damages.'  Whether  it 
was  to  afford  an  additional  stimulus 
to  secure  the  fulfilment  of  the  con- 
tract, or  to  provide  against  all  other 
losses,  or  compensate  for  other  ad- 
vantages, contingent  upon  this  con- 
tract, or  from  the  difficulty  of 
ascertaining  the  actual  damages,  or 
for  some  other  reason,  it  is  manifest 
that  other  damages  than  the  legal 


damages  were  ta.ken  into  the  ac- 
count by  the  parties  ■when  they  in- 
corporated this  provision  in  their 
agreement.  Besides,  the  contract 
contains  several  distinct  conditions 
and  requirements,  for  the  fulfilment 
of  which,  respectively,  no  sum  is 
specified;  and  it  is  impossible  to  as- 
certain such  damages  from  the  very 
natiu-e  of  these  stixjulations.  What 
actual  damages  would  result  to  the 
plaintilf ,  solely  from  the  defendant's 
omission  to  land  the  logs  at  a  suit- 
able place,  or  to  notify  the  scaler 
seasonably,  or  to  mark  the  logs,  or 
drive  them  as  early  as  practicable,  or 
to  cut  clear  without  waste,  or  to  per- 
form the  dozen  other  stipulations  of 
the  contract,  is  practically  beyond 
the  power  of  a  judicial  tribunal  to 
ascertain,  with  anything  like  ac- 
curacy. The  case  clearly  comes 
wdthin  the  second  clause  of  the  third 
rule  of  interpretation,  that  when 
pjarties  incorporate  several  distinct 
stipulations  in  a  contract,  the  breach, 
of  w'hich  cannot  be  respectively 
measured,  they  must  be  taken  to 
have  meant  that  the  sum  agreed 
upon  was  to  be  the  liquidated  dam- 
ages, and  not  a  penalty.  That  such 
was  the  intention  of  the  jjarties, 
moreover,  as  di-awn  from  the  par- 
ticidar  language  of  the  contract  upon 
this  point,  cannot  admit  of  a  doubt. " 
The  stipulation  in  this  case  is  so  ex- 
pressed that  .it  wovdd  seem  not  to 
have  been  intended  to  provide  the 
fixed  sum,  in  lieu  of  actual  damages 
difficult  of  proof,  but  a  comminatoiy 
sum  in  addition.  The  dissenting 
opinion  of  Appletou,  C.  J.,  is  be- 
lieved to  contain  a  sounder  expo- 
sition of  the  conti'act,  and  the  law 
applicable  to  it.  He  said:  "In  case 
of  a  contract,  damages  are  the  jiecun- 
iary  satisfaction  to  which  the  in- 
jured party  is  entitled  by  way  of 
compensation  for  its  breach.   Liqui- 


486 


CON\  ENTIONxlL    LIQUIDATIONS    AND    DISCIIAEGES. 


dated  damages  are  damages  agreed 
upon  by  the  parties,  as  and  for  a  com- 
pensation for  and  in  lien  of  the  act- 
ual damages  arising  from  such 
breach.  They  may  exceed  or  fall 
short  of  the  actual  damages, — but 
the  sum  thus  fixed  and  determined 
binds  the  parties  to  such  agreement. 
"When  this  sum  is  paid,  all  damages 
are  paid. 

"In  the  case  at  bar,  the  sum  of 
$1,000  was  not  liquidated  damages. 
It  was  not  for  damages  at  all.  The 
contract  so  expressly  and  unqualifi- 
edly states  it.  It  was  a  sum  '  over 
and  above  the  actual  damages.'  The 
plaintiff,  by  its  tenns,  was  further 
entitled  to  recover  the  '  actual  dam- 
age' which  he  might  sustain  by 
'  the  non-performance  of  any  agree- 
ment hereinafter  contained.'  Sup- 
pose the  actual  damages  were  $5,000, 
would  not  the  plaintitf  be  entitled  to 
recover  that  sum  ?  ]\Iost  assuredly. 
The  actual  damages  are  therefore  ex- 
cluded from  the  sum  of  one  thou- 
sand dollars,  and  yet  remain  to  be 
assessed. 

"  Liquidated  damages  are  fixed, 
settled  and  agreed  upon  in  advance, 
to  avoid  all  litigation  as  to  those 
actually  sustained.  They  are  a 
compensation  for  and  in  lieu  of  act- 
ual damages,  never  in  addition 
thereto.  The  language  of  the  agree- 
ment leaves  no  room  for  any  other 
conclusion  than  tliat  the  sum  fixed 
is  a  penalty.  It  is  not  for  damages, 
by  the  terms  of  the  contract.  It  is 
not,  therefore,  a  sum  agreed  upon  in 
liquidation  of  damages, "  but  is  a 
penalty,  and  so  must  be  regarded." 
Gowan  v.  Garrish,  15  Me.  273;  Gam- 
mon V.  Howe,  14  Me.  250. 

In  Chamberlain  v.  Bagley,  11  N. 
H.  234,  Upham,  J.,  said:  "Courts, 
from  a  desire  to  avoid  cases  of  seem- 
ing hardship,  have,  in  many  in- 
stances, made  decisions  disrec;ardiner 


the  evident  intent  and  design  of  the 
parties,  to  contracts;  and  a  variety 
of  reasons  have  been  assigned  for 
this  course.  .  .  .  We  see  no  rea- 
son why  contracts  of  this  kind 
should  not  be  judged  of  by  the 
same  rules  of  constmction  as  other 
contracts;  or  why  a  technical,  re- 
stricted meaning  should  be  given  to 
particular  phrases  without  reference 
to  other  portions  of  the  instrument 
to  learn  the  design  of  the  parties. 
The  modern  decisions  upon  this  sub- 
ject have  turned  on  the  construc- 
tion of  the  agreement  according  to 
its  general  intent.  In  Reilly  v. 
Jones,  8  Moore's  R.  244,  it  is  said 
that  where  it  may  be  fairly  collected 
that  the  intent  of  the  parties  was 
that  the  damages  stipulated  for,  as 
between  themselves,  were  to  be  con- 
sidered as  liquidated,  they  cannot 
be  treated  as  a  penalty,  although 
they  might  operate  as  such  in  a 
popular  sense.  .  .  ,  The  words 
forfeit  or  forfeiture,  penal  sum  or 
penalty,  have  in  some  instances 
been  regarded  as  furnishing  a  veiy 
strong,  if  not  conclusive  indication, 
of  the  intention  of  the  parties,  in 
an  instrument  of  this  description; 
but  the  weight  to  be  given  to  such 
phraseology  will  depend  entirely  on 
its  connection  with  other  parts  of 
the  instrument.  If  an  individual 
promises  to  pay  the  damage  which 
may  be  incurred  under  a  given  pen- 
alty, or  under  a  forfeiture,  the  dam- 
age only  in  such  case  is  agreed  to  be 
jiaid.  On  the  other  hand,  the  pen- 
alty may  be  expressly  agreed  to  be 
paid  in  such  terms  as  to  admit  of  no 
doubt  that  such  was  the  intent  of 
the  parties;  and  where  such  is  the 
case,  notwithstanding  it  may  be 
named  as  a  forfeiture,  or  the  parties 
are  spoken  of  as  bound  in  a  certain 
sum,  if  it  was  clearly  the  design  of 
the  parties  tliat  such  sum  should  be 


STIPULATED    DiVilAGES. 


4S7 


paid,  it  is  hoklen  in  the  more 
modern  decisions  as  liquidated  dam- 
ages." 

In  Brewster  v,  Edgerly,  13  N.  H. 
275,  the  same  doctrine  is  affirmed. 
Gilchrist,  J.,  said:  "Many  of  the 
decisions  of  the  judicial  tribunals, 
heretofore,  have  been  based  upon 
what  is  now  admitted  to  be  an  inse- 
cure foundation;  for  the  judgments 
have  often  proceeded  not  upon  the 
plainly  expressed  intention  of  the 
parties,  in  a  case  free  from  fraud  or 
illegality,  but  upon  the  view  which 
the  court  entertained  of  what  would 
have  been,  on  the  whole,  just,  con- 
sidering sucli  circumstances  as  were 
proved  to  exist.  The  dangerous  un- 
certainty of  such  a  mode  is  manifest, 
when  the  impossibility  of  placing 
any  other  person  in  the  exact  con- 
dition of  the  parties  at  the  time  the 
contract  was  made,  is  considered. 
Many  motives  influence  them,  many 
considerations  weigh  with  them, 
"which  no  other  person  covdd  under- 
stand and  appreciate,  unless  he 
could  thoroughly  identify  himself 
with  the  parties;  and  when  the  con- 
tract, reasonably  construed,  has  a 
plain  meaning,  that  one  party  shall, 
in  a  certain  contingency,  pay  the 
other  party  a  definite  sum,  tluis  re- 
lieving him  from  that  liability,  and 
making  the  contract  mean  some- 
thing which  on  its  face  is  not  appar- 
ent, by  assuming  that  we  can  place 
ourselves  in  the  position  of  the  par- 
ties, and  can  then  know  precisely 
what  would  have  been  equitable  for 
them  to  do,  is  nothing  else  than  a 
rescission  of  their  contract,  and  a 
substitution  for  it  of  one  made  by 
the  court.  This  result  the  cautious 
policy  of  the  common  law  has  never 
recognized  as  within  its  powers,  nor 
have  the  courts  ever  in  terms 
claimed  the  right  to  produce  it; 
still,  it  has  sometimes  been  effected 


by  the  anxious  desire  of  the  tribu- 
nals that  the  law  should  not  be 
made  the  instrument  of  injustice; 
forgetting,  sometimes,  perhaps,  in 
this  laudable  zeal,  that  one  of  the 
gi-eatest  evils  in  the  administration 
of  justice,  and  one  which  brings 
numberless  others  in  its  train,  is 
that  feeling  of  social  insecurity 
wliich  wiU  exist,  whenever  the  in- 
violability of  contracts  is  trenched 
upon,  however  pure  might  have 
been  the  motive  for  so  doing;"  and 
the  court  seem  inclined  to  think 
Kemble  v.  Farren  (6  Bing.  141)  a 
case  of  liquidated  damages,  by  rea- 
son of  the  obviovis  intent  of  the  par- 
ties as  expressed  in  the  contract. 
Mead  v.  Wheeler,  13  N.  H.  351. 
But  in  Davis  v.  Gillett,  53  N.  H.  126, 
Foster,  J.,  said:  "The  substance  of 
these  principles  (laid  down  by 
Sedgwick  in  his  treatise  on  the 
Measure  of  Damagps)  is,  that  the 
language  of  the  agreement  is  not 
conclusive;  and  that  the  effort  of 
the  tribunal  called  to  put  a  constiaic- 
tion  upon  it  will  be  to  ascertain  the 
true  intent  of  the  parties,  and  to  ef- 
fectuate that  intent.  In  order  to  do 
this,  courts  will  not  be  absolutely 
controlled  by  terms  that  may  seem 
to  be  quite  definite  in  their  meaning, 
but  will  be  at  liberty  to  consider 
and  declare  a  sum  mentioned  in  a 
bond  to  be  a  penalty,  even  although 
it  may  be  denominated  liquidated 
damages,  and  vice  versa,  if  manifest 
justice  requires  that  a  construction 
opposite  to  the  expressed  language 
of  the  instrument  sliould  be  adopted. 
In  such  cases,  the  court  do  not  as- 
sume (as  they  certainly  could  not) 
to  make  a  new  contract  for  the  par- 
ties; but  they  conclude  that  the 
parties  have  incorrectly  and  incon- 
siderately expressed  their  intention. 
The  court,  therefore,  ascertain  the 
intention,  and  then  give  it  effect." 


488 


CONVENTIONAL    LIQUIDATIONS    AND    DISCIIAKGES. 


In  Dakin  v,  Williams,  in  the 
court  of  errors,  22  Wend.  201,  Wal- 
worth, J.,  said:  "There  is  ixn- 
doubtedly  a  class  of  cases  in  -R-hich 
courts  liave  been  in  the  habit  of 
considering  a  certain  specified  sum 
as  penalty,  whatever  may  be  the 
language  of  the  agreement.  Such  is 
the  case  wherever  such  specified 
sum  is  evidently  intended  as  a  mere 
collateral  security  for  the  payment 
of  a  different  sum  which  is  the  real 
debt;  or  wliere  it  was  evidently  in- 
tended to  be  in  the  natui'e  of  a  mere 
penalty;  and  there  is  another  class 
where,  from  the  language  of  the 
agreement,  it  was  difiicult  to  ascer- 
tain what  the  parties  really  intend- 
ed, in  which  the  courts  have  taken 
the  reasonableness  of  the  provision 
as  liquidated  damages  into  consider- 
ation, for  the  purpose  of  determin- 
ing whether  it  was  intended  as  such 
or  only  as  a  comminatory  sum." 

In  Cotheal  v.  Talmage,  9  N.  Y. 
551,  the  court  recognize  it  as  a  gen- 
eral rule,  that  courts  m  acting  ui^on 
these  stipulations  should  carry  into 
effect  the  intent  of  the  parties;  but 
there  is  an  intimation  that  this  rule 
may  be  departed  from  when  the 
party  might  be  made  responsible  for 
the  whole  amount  of  damages  sup- 
posed to  be  stipulated,  for  breach  of 
an  unimportant  part  of  his  contract; 
"and  so  be  made  to  pay  a  sum  by 
way  of  damages  grossly  dispropor- 
tionate to  the  injury  sustained." 

In  Lampman  v.  Cochran,  16  N.  Y. 
275,  a  sum  specifically  named  in  an 
agreement  as  "liquidated damages," 
in  case  either  party  should  fail  to 
perform  the  contract,  was  neverthe- 
less held  a  penalty;  because  on  the 
face  of  the  instrument  it  appeared 
that  such  sum  would  necessarily  be 
an  inadequate  compensation  for  the 
breach  of  some  of  the  provisions, 
and    more    than    enough    for    the 


breach  of  others.  The  court  say: 
"The  parties  to  this  contract  must 
be  regarded  as  having  given  a  wrong 
name  to  the  sum  of  §500,  and  that 
it  is  in  substance  a  penalty,  and  not 
liquidated  damages." 

In  Caldwell  v.  Lawi-ence,  38  N.  Y, 
71,  Miller,  J.,  said:  "  One  of  the  rules 
of  construction  established  is,  that 
the  courts  are  to  be  governed  by  the 
intention  of  the  parties  to  be  gath- 
ered from  the  language  of  the  con- 
tract itself,  and  from  the  nature  of 
the  circumstances  of  the  case.  And  in 
all  the  cases  the  courts  have  treated 
it  as  a  qviestion  as  to  the  intention 
of  the  pai'ties."  In  that  case,  a  con- 
tract had  been  made  to  build  and 
place  in  a  steamboat  two  steam  en- 
gines of  a  particular  description,  on 
or  before  a  day  specified,  for  |8,000, 
and  to  have  the  same  ready  for 
steam  on  or  before  that  day  "under 
a  forfeiture  of  one  hundred  doUars 
per  day  for  each  and  every  day  after 
the  above  date  until  the  same  is 
completed  as  above."  Held,  the 
amount  being  large  and  grossly  dis- 
proportionate to  the  actual  damage, 
it  was  not  a  reasonable  inference 
that  the  amount  was  agreed  on  as 
liquidated  damages. 

In  Clement  v.  Cash,  21  N.  Y.  253, 
Wright,  J.,  said:  "When  the  sum 
fixed  is  greatly  disproportioned  to 
the  presumed  actual  damage,  prob- 
ably a  court  of  equity  may  relieve; 
but  a  court  of  law  has  no  right  to 
erroneously  construe  the  intention 
of  parties  when  clearly  expressed,  in 
the  endeavor  to  make  better  con- 
tracts for  them  than  they  have 
made  for  themselves.  In  these,  as- 
in  all  other  cases,  the  courts  are 
bound  to  ascertain  and  carry  into- 
effect  the  trvie  intent  of  the  parties. 
I  am  not  disposed  to  deny  that  a 
case  may  arise  in  which  it  is  doubt- 
ful, from  the  language  employed  in 


STIPULATED   DAMAGES. 


48D 


The  evidence  and  effect  of  intention  to  liquidate  da^i- 
AGEs. —  A  bond  is,  prima  facie,  a  penal  obligation;  but  the  smn 
stated  where  a  penalty  is  usually  inserted  has  sometunes  been 
held  hquidated  damages.^  This  has  seldom  been  done,  how- 
ever, unless  some  words  were  employed  in  connection  with  that 
sum  to  countervail  the  implication  of  penalty .^  And  where  the 
parties  in  any  otlier  form  of  contract  designate  the  stated  sum 
a  penalty,  or  characterize  it  by  some  other  equivalent  words,  it 
is  an  indication  that  a  penalty,  in  a  strict  or  technical  sense,  is 
intended;*  but  the  inference  is  not  so  strong  as  from  the  ob- 


the  instrument,  whether  the  parties 
meant  to  agree  upon  the  measure  of 
compensation  to  the  injured  party 
in  case  of  a  breach.  In  such  cases 
there  would  be  room  for  construc- 
tion, but  certainly  none  where  the 
meaning  of  the  parties  was  evident 
and  unmistakable.  When  they  de- 
clare, in  distinct  and  unequivocal 
terms,  that  they  have  settled  and 
ascertained  th(}  damages  to  be  |500, 
or  any  other  sum,  to  be  paid  by  the 
party  failing  to  perform,  it  seems 
absurd  for  a  court  to  tell  them  that 
it  has  looked  into  the  contract  and 
reached  the  conclusion  that  no  such 
thing  was  intended,  but  that  the  in- 
tention was  to  name  a  sum  as  a  pen- 
alty to  cover  any  damages  that 
might  be  proved  to  have  been  sus- 
tained by  a  breach  of  the  agree- 
ment; still,  certain  rules  have  crept 
into  the  law  that  are  supposed  to 
control  the  construction  of  contracts 
of  this  character,  until  in  the  view 
of  some  it  has  become  difficult,  if 
not  impossible,  to  support  an  agree- 
ment for  liquidated  damages  in 
cases  where  the  amount  ascertained 
by  the  parties  seems  disproportionate 
to  the  conjectured  actual  damage." 
Rolf  V  Peterson,  6  Brown,  P.  C. 
470.  If  the  sum  would  be  very 
enormovis  and  excessive,  considered 
as  hquidated  damages,  it  should  be 


taken  to  be  a  penalty  though  agreed 
to  be  paid.  Lord  Ellenborough,  C. 
J.,  laments,  in  Astley  v.  "Welden, 
2  B.  &  P.  346,  the  adoption  of  such 
a  principle.  Hoag  v.  McGinnis,  23 
Wend.  163,  per  Cowen,  J.;  Spencer 
V  Tilden,  5  Cowen,  144  and  note; 
Bagley  v.  Paddie,  5  Sandf.  192; 
Berry  v.  Wisdom,  3  Ohio  St.  241; 
Esmond  v.  Van  Beuschoten,  12  Barb. 
366;  Nash  v.  Hermasella,  9  Cal.  585; 
Bright  V.  Rowland,  3  How.  (Miss.) 
398;  Shreve  v.  Brereton,  51  Pa.  St. 
175;  Streeper  v.  Williams,  48  Pa.  St. 
450;  Powell  v.  Burroughs,  54  Pa.  St. 
329;  Moore  v.  Anderson,  30  Tex. 
224;  Chase  v.  Allen,  13  Gray,  42; 
Gowen  v,  GaiTich,  15  Me.  273;  Leg- 
gett  V  M.  L.  Ins.  Co.  53  N.  Y.  394; 
Dennis  V.  Cummings,  3  John.  Ca.  297; 
Hamilton  v.  Overton,  6  Blackf.  206; 
Lee  V.  Wliitaker,  L.  R.  8  C.  P.  70; 
Streeter  v.  Rush,  25  Cal.  67. 

1  Studbaker  v.  White,  21  Ind.  212; 
Fisk  v.  Fowler,  10  Cal.  512;  Duffey  v. 
Shocky,  11  Ind.  70. 

2Cotheal  v.  Talmage,  9  N.  Y.  551; 
ShieU  V.  McNitt,  9  Paige,  101; 
Leary  v.  Laflin.  101  Mass.  334. 

3Yenner  v.  Hammond,  36  Wis. 
277;  Tayloe  v.  Sandiford.  7  Wlieat. 
13;  White  v.  Arleth,  1  Bond,  319; 
Smith  V.  Dickerson.  3  B.  &  P.  130; 
Davies  v.  Pernton,  6  B.  &  C.  216; 
Harrison  v.  Wright,  13  East,   245; 


490  CONVEiS^TIONAL    LIQUIDATIONS    AND    DISGHAEGES. 

ligation  being  in  the  form  of  a  bond,  as  may  be  inferred  from 
the  greater  number  of  instances  in  which  asmn  called  a  penalty 
or  forfeiture  by  the  parties,  in  contracts,  have  been  held,  never- 
theless, hquidated  damages.  The  tendency  and  preference  of 
the  law  is  to  regard  a  stated  sum  as  a  penalty,  because 
actual  damages  can  then  be  recovered,  and  the  recovery  be 
Imiited  to  such  damages.^  This  tendency  and  preference,  how- 
ever, does  not  exist  where  the  actual  damages  cannot  be  ascer- 
tained by  any  standard.  A  stipulation  to  liquidate  damages 
in  such  cases  is  considered  favorably.^  If  the  amount  is  not  so 
large  in  such  cases  as  to  raise  a  doubt  that  the  amount  is  pro- 
portionate to  the  injmy,  other  circumstances  being  equal,  it  is 
believed  tlie  tendency  of  the  judicial  mind  is  to  treat  a  fixed 
sum  as  hquidated  damages  by  Avhatever  name  it  may  be  men- 
tioned in  the  contract.^  But  wherever  there  is  doubt  as  to 
the  justice  of  the  stipulation,  if  the  sum  be  called  a  penalty  in 
the  contract,  that  circumstance  is  frequently  referred  to  as  a 
reason  for  holding  tlie  sum  stated  to  be  a  penalty,  on  the 
ground  of  intention.  The  intention,  in  such  cases,  however,  is 
commonly  a  deduction  from  the  general  effect  of  the  contract, 
and  the  word  penalty  is  alluded  to  to  confu'm  a  foregone  con- 
clusion.* On  the  other  hand,  if  the  general  effect  of  the  con- 
tract, otherwise,  leads  to  the  conclusion  that  the  stipulated  sum 
should  be  held  to  be  a  penalty,  the  circumstance  that  the  parties 
have  called  it  liquidated  damages,  and  say  they  do  not  mean  it 

Brown  V.  Bellows,  4  Pick.  179;  Burr  2Jaqueth  v,  Hudson,  5  Mich.  123; 

V.  Todd,  5  Wright  (Pa.),  66;  Robin-  Duffy  v.  Shocky,  11  lud.  70;  Spar- 

Bon  V.  Cathcart,  2  Craucli  C.  C.  590;  row  v.  Paris,  7  H.  &  N.  59;  Pierce  v. 

Bygong    V.    Tyson,    75    Pa.    St.    15;  Jung,  10  AVis.    30;   Cotheal  v.  Tal- 

Esmond    v.    Van    Benschoten,     12  mage,  9  N.  Y.  551;  Boys  v.  Ancel,  5 

Barb.  366;  Clement  v.  Cash,  21  N.  Bing.  N.  C.  390;  Richards  v.  Edick, 

Y.  253;  Cheddick  v.  Marsh,  21  N.  J.  17  Barb.  260;  Noyes  v.  Phillips,  60 

463;  Hodges  v.   King,  7  Met.   583;  N.  Y.  408;  Harris  v.  Miller,  6  Saw- 

Saltus  V.  Ralph,  15  Abb.  273;  Bear-  yer,  319;  Knowlton  v,   Mackey,  29 

son  V.  Smith,  11  Rich.  554.  Uj).    Can.    C.    P.    661;    Ivenson  v. 

'1  Shute  V.  Taylor,  5  Met.  61;  Wallis  Althorp,  1  Wyo.  T.  71;  Williams  v. 

V.  Carpenter,  13  Allen,  19;  Cheddick  Vance,  9  Rich.  344;  Birdsall  v.  23d 

V.  Marsh,  21  N.  J.  L.  463;  Baird  v.  St.  R'y  Co.  8  Daley,  419. 

Tolliver,    6  Humph.    180;    Spear  v.  aid. 

Smith,  1  Denio,  464.  4  Colwell  v.  Lawrence,  38  N.  Y.  75. 


STirULATED   DAilAGES.  491 

as  penalty,  and  even  use  very  clear  language  that  it  is  to  be 
actually  paid,  will  not  control  the  interpretation ;  it  will,  not- 
withstanding, be  considered  a  penalty.^ 

Stipulated  sum  where  damages  otherwise  certain  or  uxcer' 
TAm. —  There  is  a  marked  difference  between  contracts  which 
relate  to  subjects  within  the  definite  rules  for  nieasuiing  dam- 
ages, and  those  for  infraction  of  which  the  damages  are  uncer- 
tain and  difficult  to  be  proved.  A  stipulated  sum  in  a  contract 
of  the  former  class  is  generally  unnecessary  unless  to  restrict 
damages  below  the  leral  standard  or  to  extend  them  bevond. 
The  parties  have  the  right  to  do  either ;  and  when  the  intention 
is  clearly  manifested  to  do  so,  it  will  be  enforced  in  cases  clear 
of  fraud,  oppression  or  unconscionable  extravagance.^  But  in 
such  cases  the  disparity  between  the  agreed  sum  and  the  actual 
injury  is  readily  seen,  and  may  be  supposed  to  have  been  equally 
apparent  to  the  parties ;  and  courts,  proceeding  upon  the  rational 
theory  which  all  experience  confirms,  that  large  damages  for 
small  injury  are  never  willingly  stipulated  to  be  actuall}^  paid, 
nor  a  small  and  disproportionate  compensation  accepted  for  a 
great  injury,  they  are  seldom  convinced  that  such  unequal  con- 
tracts are  volimtarily  entered  into  to  hquidate  damages.  Of 
this  nature  are  contracts  for  the  payment  of  money,  and  all 
other  contracts  for  violation  of  which  market  values  fm-nish 

1  Horner  v.  Flintoff,  9  M.  &  W.  costs;  and  otherwise  valid,  because 

678;   Dennis  v.  Cummins,  3  Johns,  witliin  a  specified  time  the  debtor 

Cases,  297;  Lindsey  v.  Anesley,  G  Ired.  had  tlie  option  to  pay  money,  at  the 

188;  Baird  v.  TolUver,  6  Humph.  186;  rate  of  one  dollar  for  five  busliels. 

Yenner  v.  Hammond,  36  Wis.  277;  Cutler  v.  Johnson,  8  Mass.  266;  Bax- 

Lampman    v.    Cochran,    16    N.   Y.  ter  v.  Wales,   13  Mass.  365;  Leland 

275.  V.    Stone,   10    Mass.   459;  James  v. 

2 In  Cutler  v.  Howe,  8  Mass.  257,  Morgan,  1  Levmz,  111;  Earl  of  Ches- 
a  party  being  liable  to  have  his  prop-  terfield  v.  Jansen,  1  Wils.  287;  Rus- 
erty  taken  to  satisfy  an  execution,  sell  v.  Roberts,  3  E.  D.  Smith,  3l8. 
gave  an  obligation  to  pay  the  debt,  In  an  action  brought  on  a  promise 
and  a  certain  amount  for  costs  not  of  £1,000  if  the  plaintiff  should  find 
incurred,  in  oats  at  twenty  cents  per  the  defendant's  owl,  the  court  de- 
bushel,  when  they  were  worth  clared,  though  the  promise  was 
thirtj^-seven  cents;  it  was  held  that  proved,  the  jury  might  mitigate  the 
the  juiy  might  disrcgai'd  the  con-  damages.  Bac.  Abr.  Damages,  D. 
tract  because  unconscionable  and  See  Thornborrow  v.  Whitacre,  3 
oppressive  as  to  the  sum  added  for  Lord  Raym.  1161. 


492  CONVENTIONAL    LIQUIDxVTIONS    AND    DISCIIAKGES. 

tlie  cLata  ordinarily  adequate  for  the  ascertainment  of  due 
compensation.  When  such  contracts  provide  for  damages, 
either  more  or  less  than  those  due  by  the  legal  standard,  they 
must  be  drawn  with  great  clearness  to  express  the  intention ; 
and  in  general  there  should  appear  on  the  face  of  the  contract, 
or  otherwise,  some  ground  for  departing  from  that  standard; 
for  the  leaning  of  the  court  in  case  of  doubt  will  be  towards 
the  construction  that  the  provision  contains  a  penalty.^ 

On  the  other  hand,  where  a  contract  is  of  such  a  character 
that  the  damages  which  must  result  from  a  breach  of  it  are  un- 
certain in  their  nature  and  not  susceptible  of  proof  by  reference 
to  any  pecuniary  standard,  it  is  deemed  especially  fit  that  the 
parties  should  liquidate  the  damages,  and  any  stipulation  they 
make  ostensibly  for  that  pm^pose  receives  favorable  consider- 
ation.2 

Contracts  for  the  payment  of  money. —  These  are  contracts 
of  the  highest  degree  of  certainty.  Interest  is  the  universal 
measure  of  damages  for  delay  of  payment.^  But  some  latitude 
is  allowed  for  modifying  the  rate  by  contract.  Stipulations  as 
to  rate  before  maturity,  not  exceeding  any  statutory  limit,  are 
uniformly  enforced  in  cases  fi'ee  from  fraud  or  oppression. 
There  is  no  reason  why  a  party  may  not  stipulate  the  rate  after 
maturity  as  freely  and  effectually  as  before,  except  that  such 
stipulations  to  liquidate  damages  are  made  with  less  caution, 
for  they  are  made  only  to  be  operative  in  case  of  default,  an 
event  not  then  anticipated  to  occur.  When,  therefore,  the 
rate  is  made  very  much  higher  immediately  after  maturity  than 
that  reserved  before,  there  is  a  departure  from  the  standard 
of  compensation  fixed  by  the  parties  for  the  period  of  credit, 

iFisk  V.  Gray,  11  Allen,  182;  John-  Peddle,  16  N.  Y.  469;  Dakin  v.  WUl- 

son  V.  Gray,  16  S.  &R.  265;  Baird  V  iams,    17    "Wend,     447;    Knapp    v. 

Tolliver,    6  Humph.    186;  Foote  v.  Maltby,    13    Wend.    587;    Price    v. 

Sprague,    13    Kan.    155;    Tholen    v.  Green,  16  M.  &  W.  346;  Jaqueth  v. 

Duffy,  7  Kan.  405;  Kurtz  v.  Spon-  Hudson,  5  Mich.  123;  Cothealv.  Tal- 

able,  6  Kan.  395.  mage,  5  Seld.  551;  Dennis  v.  Cum- 

2Kemble  v.  Farren,  6  Bing.  141;  mins,  3  John.  Ca.  297. 
Sainter  v.    Ferguson,   7   C.   B.  716;         3  Orr  v.  Churchill,  1  H.  Black.  227; 

Fletcher  v.  Dyche,  2  T.  R.  82;  Spar-  Fish  v.  Gray,  11  Allen,  132;  Watkias 

row  V.  Paris,  7  H.  &  N.  594;  Mundy  v.  Morgan,  6  C.  &  P.  661;  Hughes  v. 

V.  Culver,   18  Barb.  336;  Bagley  v.  Fisher,  Walk.  (Miss.)  516. 


STIPULATED    DAMAGES. 


493 


and  it  has  been  held  in  some  cases  that  such  increased  rate  as 
damages  is  in  the  nature  of  a  penalty ;  ^  and  in  some  cases  that 
any  rate  above  the  legal  rate  is  a  penalty,  even  though  parties 
are  by  law  at  hberty  to  stipulate  for  any  rate  of  interest  proper, 
"without  restriction.^  But  the  general  current  of  authority  is 
that  any  rate  which  parties  may  la^'iully  agree  to  as  the  rate 
before  maturity  may  be  fixed  as  the  rate  afterwards,  though  the 
debt,  before  it  becomes  due,  bear  no  interest  or  a  lower  rate.' 
If,  however,  a  rate  is  fixed  for  interest  as  damages,  which  is 
above  the  highest  rate  that  may  be  reserved  by  agreement,  to 
be  paid  dm-ing  the  period  of  credit,  it  is  not  usurious,  because 
the  debtor  can  at  any  time  relieve  himself  by  payment.'*    But 


1  Waller  v.  Long,  6  IMunf.  71.  In 
Astley  V.  Welden,  2  B.  &  P.  346, 
Heath,  J.,  said:  "  It  is  a  well-known 
rule  in  equity,  that  if  a  mortgage 
covenant  be  to  pay  5/.  per  cent. ,  and 
if  the  interest  be  paid  oji  certain 
days,  then  to  be  reduced  to  41.  per 
cent.,  the  court  "wUl  not  relieve  if 
the  early  days  be  suffered  to  pass 
"without  payment;  but  if  the  cove- 
nant be  to  pay  47.  per  cent.,  and  if 
the  party  do  not  pay  at  a  certain 
time,  it  shall  be  raised  to  51.  per 
cent.,  there  the  court  of  chancery 
will  reheve."  See  GaUy  v.  Remy,  1 
Blackf.  69;  Herbert  v,  Salisbury, 
etc.  R'y  Co.  L.  R.  2  Eq.  221;  Aylet 
V.  Dodd,  2  Atk.  238;  Watts  v.  Watts, 
11  Mo.  547. 

2  Mason  v.  Callender,  2  Minn.  350; 
Talcott  V.  Martin,  3  Minn.  339; 
Daniel  v.  Ward,  4  Minn.  168;  Robin- 
son V.  Kenny,  2  Kau.  184;  Watkins 
V.  Morgan,  6  C.  &  P.  661. 

3  Palmer  v.  Leffler,  18  Iowa,  125 
Phmney  v.  Baldwin,  16  111.  108 
Fisher  v.  Bidwell,  27  Conn.  363 
Downey  v.  Beach,  78  lU.  53;  Funk 
V.  Buck,  91  111.  575;  Wernway  v. 
Motherhead,  3  Blackf.  401;  Latliam 
v.  DarUng,  2  111.  203;  Young  v. 
Fluke,  15  Upper  Canada,  C.  P.  560; 
Withrow  v.  Briggs,  67  111.  96;  Davis 


V.  Rider,  53  111.  416;  Brewster  v. 
Wakefield,  22  How.  U.  S.  118; 
Bowler  v.  Hutchinson,  West.  L.  J. 
(Ohio)  506;  Wyman  v.  Cochran,  35 
111.  152;  Gould  v.  The  Bishop  Hill 
Colony,  35  111.  224;  Lawrence  v. 
Cowles,  13  111.  577;  Smith  v.  Whit- 
acre,  23  111.  367;  Young  v.  Thomp- 
son, 2  Kan.  83;  Dudley  v.  Reynolds, 
1  Kan.  285;  Wilkerson  v.  Daniels,  1 
Greene  (Iowa),  179;  Taylor  v.  Meek, 
4  Blackf.  388.     See  tit.  Interest. 

4  Lawrence  v.  Cowles,  13  111.  577; 
Gould  V.  Bishop  Hill  Colony,  35  lU. 
324;  Davis  v.  Rich,  53  111.  416;  With- 
row V.  Briggs,  67  111.  96;  Wilday  v. 
Mon-ison,  66  111.  532;  Cutler  v.  How, 
8  Mass.  257;  CaU  v.  Scott,  4  CaU, 
402;  Wilson  v.  Dean,  10  Iowa,  432; 
Gower  v.  Carter,  3  Iowa,  244;  Moore 
V.  Hilton,  1  Dev.  Eq.  429;  Campbell 
V.  Shields,  6  Leigh,  511;  Gambril  v. 
Doe,  8  Blackf.  140;  Fislier  v.  Otis,  3 
Chand.  83;  Shuck  v.  Wright,  1  G. 
Greene  (Iowa),  128;  Wright  v.  Shuck, 
Morris  (Iowa),  425;  Fisher  v.  Ander- 
son, 25  Iowa,  28;  Jones  v.  Berryhill, 
25  Iowa,  289;  Rogers  v.  Sample,  33 
Miss.  310;  Roberts  v.  Tremayne,  3 
Croke,   507;     Floyer     v.     Edwards, 

1  Cowp.  112;  Wells  v.  Girling,  1 
Brod.  &  Bing.  447;  Caton  v.  Shaw, 

2  How.  &  G.  13;  Bac.  Abr.  tit.  Usury. 


494 


CONV'EjS^TIONAL    liquidations    and    DISCn.UiGES. 


such  excessive  rate  will  be  held  a  penalty,  if  it  exceeds  any  rate 
which  the  law  recognizes  as  compensation.^  In  Illinois  even 
a  rate  above  that  allowed  by  law  to  be  contracted  for  before 
maturity  may  be  fixed  as  hquidated  damages  after  maturity,  if 
not  intended  as  an  evasion  of  the  statute  against  usury.^  N'o 
damages  for  the  mere  non-payment  of  money  can  be  so  liquidated 
between  the  parties  as  to  evade  the  laws  against  usury. ^ 

Where  there  are  special  circumstances  which  require  punctu- 
ality in  the  payment  of  moneys  when  due,  or  which  cause  spe- 
cial loss,  or  necessitate  a  particular  outlay  in  consequence  of 
default,  a  stipulated  forfeiture  on  that  default,  equity  has  re- 
fused to  relieve  against,  and  stipulated  compensations  therefor 
have  been  sanctioned.  Thus  costs  and  expenses  of  making  col- 
lection, including  attorney's  fees,  are  sometimes  imposed  on  the 
debtor  by  the  terms  of  the  contract,  and  when  reasonable  in 
amount  have  been  sustamed  as  valid.* 


1  Gower  v.  Carter,  3  Clarke  (Iowa), 
244;  Shack  v.  Wright,  1  G.  Greene, 
128;  Wilson  v.  Dean,  10  Iowa,  432; 
Wright  V.  Shuck,  Morris,  425. 

2  Smith  V.  Whitaker,  23  lU.  367; 
Downey  v.  Beach,  78  111.  53;  Funk  v. 
Buck,  91  111.  575. 

sOrr  V.  Churchill,  1  H.  Black.  233; 
Gray  v.  Crosby,  18  John.  219. 

4  Robinson  v.  Loomis,  51  Pa.  St. 
78;  Huling  v.  Drexel,  7  Watts,  126 
Fitzsimnions  v.  Bauni,  8  Wright,  32 
M'Allister's  App.  59  Pa.  St.  204 
Tallman  v.  Truesdale,  3  Wis.  443 
Mosher  v.  Chapin,  13  Wis.  453;  Bil- 
lingsley  v.  Dean,  11  Ind.  331;  Kuhn 
V.  Meyers,  37  Iowa,  351;  Nelson 
V.  Everett,  39  Iowa,  184;  Williams  v. 
Meeker,  29  Iowa,  293. 

In  Foote  v.  Sprague,  13  Kan.  155, 
a  stipulation  in  a  mortgage  for  fifty 
doUars  as  liquidated  damages  for 
the  foreclosure  was  held  void.  Val- 
entine, J.,  said:  ''  The  stipulation  in 
the  mortgage  in  this  case 
is  for  a  certain  sum  to  be  paid  by  the 
debtor  as  liquidated  damages  over 
and  above  the  debt  and  interest  and 


all  legitimate  costs.  Now  what  was 
the  term  '  liquidated  damages '  in 
this  mortgage  designed  to  cover  ?  If 
it  was  designed  to  cover  attorney 
fees,  why  did  not  the  parties  say  so 
in  the  mortgage  ?  If  it  was  designed 
to  cover  any  legitimate  charge  or 
expense,  why  did  they  not  say  so  ? 
If  the  damages  were  for 
usurious  interest  they  could  not  be 
allowed.  And  would  it  be  proper  to 
allow  an  issue  to  be  framed,  and  a 
trial  had  to  determine  whether 
these  '  liquidated  damages '  were  in- 
tended to  cover  some  legitimate 
chai'ge  or  expense,  or  to  cover  usuri- 
ous interest  ?  " 

In  Ohio  an  agi'eement  to  pay  Ave 
per  cent,  collection  fees  was  held  to 
be  against  public  policy  and  void. 
State  V.  Taylor,  10  Ohio,  368,  Shelton 
V.  cm,  11  Ohio,  417. 

la  Johnson  v.  Anderson,  2  Pen- 
nington, 537,  the  defendant  was  in- 
debted to  the  plaintiff  in  the  sum  of 
$500;  and  the  plaintiff  was  indebted 
to  two  other  persons  in  the  sum  of 
$100,  wliich  would  come  due  May  1, 


STIPULATED   DAIMAGES.  495 

"Where,  in  public  undertakings,  there  is  a  stipulation  that 
shareholders,  on  non-payment  of  caUs,  shaU  forfeit  their  shares, 
equity,  upon  grounds  of  public  pohcy,  and  from  the  necessity  of 
punctuahty,  in  payment  in  such  cases,  wiU  refuse  to  interfere 
and  grant  relief  from  forfeitm^e.^  Sir  William  Grant,  M. 
R.,2  refused  to  relieve  against  a  forfeiture,  under  a  by-law 
of  an  incorporated  company  for  water  works,  which  provided, 
that  the  members  receiving  notice  of  default  in  paying  a 
call  should  incur  forfeiture  by  non-payment  ten  days  after, 
although  the  non-payment  arose  from  ignorance  of  the  caU, 
absence  from  the  town  where  the  notice  was  sent,  and  other 
accidental  circumstances.  He  said:  "This  biU  is  foimded  on 
forfeiture,  and  upon  the  ground  that  the  plaintiff  did  not 
consider  himself  as  a  partner,  and  offering  compensation, 
and  ])raying  to  be  relieved  from  the  forfeitm-e.  The  parties 
might  contract  upon  any  terms  they  thought  fit,  and  migiit  im- 
pose terms  as  arbitrary  as  they  pleased.  It  is  essential  to  such 
transactions.  This  struck  me  as  not  hke  the  case  of  individuals. 
If  this  species  of  equity  is  open  to  parties  engaged  in  those  un- 
dertakings, they  could  not  be  carried  on.  It  is  essential  that  the 
money  should  be  paid,  and  that  they  should  know  what  is  their 

1810.  In  consequence  of  plaintiff  creditor,  in  most  cases,  suffers  an  in- 
being  in  danger  of  suit  and  costs  for  convenience  in  the  case  of  a  want  of 
these  debts,  the  defendant  promised  punctuality  in  his  debtor;  he  cannot, 
that  he  would  pay  the  debt  due  from  however,  recover  more  than  the 
him  to  the  plaintiff  to  enable  him  to  debt,  interest  and  costs;  nor  will  a 
discharge  in  time  these  debts,  and  in  promise  to  pay  more  help  his  case." 
case  of  failure  to  do  so,  and  the  A  being  indebted  to  B,  and  not 
plaintiff  should  be  sued  and  put  to  being  able  to  raise  the  money  him- 
costs  and  expenses,  the  defendant  self,  directed  B  to  raise  it,  and  prom- 
would  pay  them.  The  defendant  ised  to  pay  him  whatever  he  had  to 
failed  to  pay  the  money  at  tlie  time,  pay  for  it.  B  raised  it  at  an  exorbi- 
whereupou  the  plaintiff  was  sued  in  taut  interest  for  three  years;  held, 
two  actions  and  put  to  $80  costs,  for  that  B  was  the  mei'e  agent  of  A  in 
recovery  of  which  from  the  defend-  raising  the  loan,  and  was  entitled  to 
ant  this  suit  was  brought.  It  recover  the  whole  amount  paid  by 
was  held  that  the  plaintiff  was  not  B  for  the  use  of  the  money.  Shirley 
entitled  to  recover.  The  court  say,  v.  Spencer,  9  111.  583. 
"there  is  no  legal  considei-ation  on  ^3  Lead.  Cas.  inEq.  917. 
which  the  promise  can  attach.  If  2Sparks  v.  The  Company  of  the 
this  was  law,  usury  and  oppression  Proprietors  of  the  Liverpool  Water 
would    take    a    wide    range.      The  "Works,  13  Ves.  428. 


496  CONVENTIONAL   LIQUIDATIONS    AND   DISCHARGES. 

situation.  Interest  is  not  an  adequate  compensation,  even  among 
individuals,  much  less  in  these  undertakings.  In  particular  cases, 
interest  might  be  a  compensation,  but  in  a  majority  of  cases  it 
is  no  compensation,  from  the  uncertainty  in  which  they  may  be 
left.  The  effect  is  the  same,  whether  the  money  has  been  paid 
or  not.  They  know  the  consequence ;  the  party  making  default 
is  no  longer  a  member ;  but  if  a  party  can,  in  equity,  enter  into 
a  discussion  of  the  circumstances,  each  may  bring  his  suit.  They 
must  remain  a  considerable  time,  to  see  whether  a  suit  wiU  be 
begun,  and  before  the  suit  can  be  decided.  They  do  not  know 
when  any  member  will  sue.  If  a  bill  is  to  be  permitted,  there 
cannot  be  any  certainty  that  every  member  who  has  made  de- 
fault may  not  file  a  bill.  Can  the  court  impose  a  limitation  of 
the  period  when  bills  may  be  filed  ?  If  the  court  ever  began  to 
deal  with  these  cases,  the  number  must  be  infinite.  This  is  the 
mode  which  a  party  has  to  withdraw  from  a  losing  concern. 
Why  is  not  this  equity  open  to  contractors  for  the  government 
loans  ?  Why  may  not  they  come  here  to  be  reheved,  when  they 
have  failed  in  making  their  deposit  ?  And  if  they  could  have 
their  relief,  how  could  the  government  go  on  ?  It  would  be  just 
as  difficult  for  these  undertakings  to  go  on.  If  compensation 
cannot  be  effectually  made,  it  ought  not  to  be  attempted.  It 
would  be  hazardous  to  entertain  such  a  bill.  Accident  here  is 
only  the  want  of  precaution."  ^ 

A  sum  greater  than  interest  may  be  fixed  by  the  parties  as 
compensation  for  paying  a  debt  at  an  earlier  time,  or  at  a  differ- 
ent place.2  It  is  obvious  that  the  omission  to  pay  money  pursu- 
ant to  agreement  in  particular  situations,  or  for  specific  purposes 
which  would  othermse  miscarry,  followed  by  loss  or  injmy  of 
uncertain  amount,  and  for  which  interest  would  be  no  adequate 
compensation,  may  be  the  subject  of  a  different  measure  of 
reparation  by  agreement,  as  it  often  is  without  such  agreement.' 

1  See  The  Georgia  Land  and  Cotton  Eq.  612;  Ld.  Ashtown  v.  White,  11 
Co.  V.  Flint,  35  Ga.  226;  Hughes  v.  Irish  L.  400.  See  U.  S.  v.  Gurney,  4 
Fishfer,  Walk.  (Miss.)  516;  Fowler  v.      Cranch,  333. 

Ward,  Harp.  373.  3  Woodbridge  v.  Bropley,  2  West. 

2  Plummer  v.  McKean,  2  Stew.  L.  Monthly,  274;  Hardee  v.  Howard, 
423;  Jordan  v.  Lewis,  2  Stew.  426;  33  Ga.  533;  Sutton  v.  Howard,  33  Ga. 
Thompson  v.  Hudson,  L.  R.  4  H.  L.  536.  See  ante,  p.  128.  Parfitt  v. 
1  —  reversing  decision,  S.  C.  L.  R.  2  Chambre,  Ex  parte  D'Attegrac,  L.  R. 


STIPULATED    DAMAGES. 


497 


The  duty  of  a  bank  to  pay  the  checks,  drafts  and  orders  of  a 
depositor,  so  long  as  the  bank  has  in  its  possession  funds  of  his 
sufficient  to  do  so,  and  which  are  not  incumbered  by  any  earher 
lien  in  favor  of  the  bank,  is  but  a  legal  obligation  to  pay  money. 
It  is  implied  from  the  usual  course  of  business,  if  it  is  not  ex- 
press, and  it  usually  is  not.^  The  customer  may  draw  out  his 
funds  in  such  parcels  as  he  may  see  fit,  both  as  regards  number 
and  amount.  The  rule  of  law  forbidding  a  creditor  to  split  up 
his  demand  does  not  affect  this  principle,  which  is  based  upon  a 
custom  of  the  banking  business.-  This  duty  of  the  bank  is  of 
such  importance  that  if  the  bank  refuses,  without  sufficient 
justification,  to  pay  the  check  of  the  customer,  he  has  his  action 
for  damages ;  and  may  recover  substantial  damages,  though  no 
actual  loss  or  injury  be  shown.^ 

Laege  sum  to  secure  payment  of  a  smaller. —  Where  a 
large  sum,  which  is  not  the  actual  debt,  is  agreed  to  be  paid  in 


15  Eq.  C  36.  An  action  at  law  was 
by  consent  referred,  and  the  arbi- 
trator awarded  and  ordered  that  the 
defendant  should  paj-  to  the  plaintiff 
in  the  action,  an  annuity  of  £1,200  a 
year  for  life,  and  that  in  order  to  se- 
cure the  annuity,  the  defendant 
should,  within  two  months,  pur- 
chase and  convey  to  trustees,  on  be- 
half of  the  plaintiff,  a  government 
annuity  of  £1,200  a  year,  and  that  if 
for  any  reason  the  annuity  should 
not  have  been  legally  secured  before 
the  last  day  of  the  second  month 
from  the  date  of  the  award,  then,  in 
addition  to  the  annuity,  a  further 
sum  of  £100  should  become  due  and 
payable  by  the  defendant  to  the 
plaintiff  on  the  last  day  of  the  sec- 
ond month,  and  a  like  sum  of  £100 
on  the  last  day  of  each  successive 
month,  until  such  annuity  should  be 
legally  secured;  and  the  award 
added:  "These  monthly  pajnients 
are  to  be  considered  as  additional  to 
the  payments  due  in  respect  of  the 
annuity,  and  as  a  penalty  for  delay 
in  the  legal  settlement  of  the  same. 
Vol.  1  —  33 


No  annuity  as  directed  by  the  award 
having  been  purchased;  the  plaintiff 
having  been  adjudicated  a  bank- 
rupt; the  defendant  having  died,  and 
the  £1,200  a  year,  and  £100  a  month 
having  been  regularly  paid  to  the 
plaintiff  and  her  assigns,  up  to  the 
defendant's  death,  but  not  since: 
upon  claim  by  the  assignees  to  prove 
against  the  defendant's  estate,  for 
the  payment  due  in  respect  of  the 
annuity,  and  of  the  monthly  pay- 
ments accrued  due  since  his  death: 
Held,  that  the  £100  per  month, 
though  called  a  penalty,  was  not  to 
be  regarded  strictly  as  such,  and  that 
the  assignees  were  entitled  to  prove 
for  the  ai'rears,  both  of  the  annuity 
and  the  £100  a  month." 

1  Downs  V.  Phoenix  Bank,  6  Hill, 
297;  Marzetti  v.  Williams,  1  B.  & 
Ad.  415;  Watson  v.  Phoenix  Bank, 
8  Met.  217;  Morse  on  Banking,  29. 

2  Id.;  Munn  v.  Burch,  25  lU.  35; 
Chicago  Ins.  Co.  v.  Stanford,  28  111. 
168. 

sRoUin  V.  Stewart,  14  Com.  B. 
595;  Morse  on  Banking,  453. 


49S 


CONVENTIONAL    LIQUIDATIONS    AND    DISCHARGES. 


case  of  a  default  in  the  payment  of  a  less  sum,  which  is  the 
actual  debt,  such  larger  sum  is  always  a  penalty.^  This  rule 
has  often  been  loosely  stated,  and  its  true  scope  and  operation 
overlooked  by  following  too  rigidly  the  letter.  A  contract  may 
be  framed  so  as  apparently  to  secure  the  payment  of  a  less  sum 
by  a  greater,  when  it  is  in  substance  but  an  alternative  agree- 
ment, or  a  conditional  agreement  to  accept  a  stipulated  part  in 
full  satisfaction,  if  paid  at  a  particular  time  or  in  a  specified 
manner.^ 

A^ demise  of  land  was  made  at  a  yearly  rent  of  £187,  with 
the  usual  clauses  for  distress  and  entry  on  non-payment ;  and  it 
contained  an  agreement  that  so  long  as  the  lessee  performed 
the  covenant,  the  lessor  would  be  content  with  the  yearly  rent 


1  Astley  V.  Weklen,  ,C  B.  &  P.  346; 
Taul  V,  Everet.  4  J.  J.  Marsh.  10; 
Astley  V.  Welden,  2  B.  &  P.  254,  per 
Chambre,  J.;  Bayley  v.  Peddie,  5 
Sandf.  192;  Beal  v.  Hays,  5  Sandf. 
640;  Caimes  v.  Knight,  17  Ohio  St. 
69;  Morris  v.  McCoy,  7  Nev.  399; 
Tiernan  v,  Hinman,  16  111.  400 ; 
Fitzpatrick  v.  Cottingham,  14  Wis. 
219;  Haldeman  v.  Jenning,  14  Ark. 
329;  Mead  v.  Wheeler,  13  N.  H.  353; 
Chamberlain  v.  Bagley,  11  N.  H. 
234;  Kimball  v.  Farren,  6  Bing.  141; 
Mason  v.  Flint,  2  Minn.  350;  Niver 
V.  Rassman,  18  Barb.  55;  Kuhn  v. 
Myers,  37  Iowa,  351;  Davis  v.  Hen- 
drie,  1  Montana,  499;  Wallis  v.  Car- 
penter, 13  Allen,  19;  Gray  v.  Crosby, 
18  John.  319;  Brockway  v.  Clark,  6 
Ohio,  45. 

2  In  Thompson  v.  Hudson,  L.  R.  2 
Eq.  012,  a  creditor  had  agreed  with 
his  debtor  to  remit  part  of  his  debt 
upon  having  a  mortgage  to  secure 
the  payment  of  the  balance  in  two 
years,  without  prejudice  to  his  right 
to  recover  the  whole  debt  if  such 
balance  was  not  paid  within  that 
time.  The  debtor  executed  a  mort- 
gage for  such  balance,  containing  a 
proviso'  that  if  the  mortgage  debt 
be  not  paid  within  two  years,  the 


whole  of  the  original  pbould  be  re- 
covered; and  it  was  held,  that  the 
proviso  was  of  the  nature  of  a  pen- 
alty, from  which  the  mortgagor  was 
entitled  to  be  relieved  in  equity;  that 
the  mortgagee  could  only  recover 
tlie  smaller  sum.  But  on  appeal  to 
the  house  of  lords  (L.  R.  4  H.  L.  1), 
this  decision  was  reversed.  And  it 
was  held,  if  the  larger  sum  is  act- 
ually due,  and  the  creditor  agrees 
to  take  a  lesser  sum,  provided  that 
sum  is  secvu'ed  in  a  certain  way  and 
paid  on  a  certain  day,  and  that,  if 
these  stii)ulations  be  not  performed, 
he  shall  be  entitled  to  recover  the 
whole  of  the  original  debt,  such  re- 
mitter to  such  original  debt  does  not 
constitute  a  penalty,  and  a  court  of 
equity  will  not  relieve  against  it. 
Mayng  on  Dam.  101.  Lord  West- 
bury  said  that  any  i^lain  man  walk- 
ing the  streets  of  London  would 
have  said  that  it  was  in  accordance 
^vith  common  sense;  and  if  he  were 
told  that  it  would  be  requisite  to  go 
to  three  tribunals  before  getting  it 
accepted,  would  have  held  up  his 
hands  with  astonishment  at  the 
state  of  the  law.  Corley  v.  Carter, 
23  Ala.  612. 


STIPULATED    D^^LMAGES.  499 

of  £93,  ])ayable  on  the  same  days  as  the  first  reserved  rent.  It 
was  held,  that  the  larger  rent  was  not  penal  rent ;  that  eject- 
ment could  be  maintained  on  its  non-payment.^ 

Such  cases  must  be  determined  on  the  true  intent  of  the  trans- 
action. If  the  larger  sum  is  in  truth  the  actual  price  or  debt, 
and  the  smaller  only  agTeed  upon  as  a  satisfaction  if  paid  under 
stated  conditions,  the  omission  to  comply  with  the  terms  of 
payment  in  the  easier  mode,  Avill  preserve  to  the  creditor  the 
right  to  exact  the  larger  sum.  A  recent  case  in  Wisconsin  was 
correctly  decided  on  this  principle.  A  bond  was  made  in  a  pen- 
alty of  $900,  conditioned  that  if  the  obligor  should  pay  to  the 
obligee  one  year  after  the  death  of  her  husband,  and  annually 
thereafter  during  her  natural  life,  the  sum  of  the  interest  on 
$464  at  the  rate  of  seven  per  cent,  per  annum,  the  bond  should 
be  void,  othermse  of  force;  and  it  was  also  provided  in  the 
condition,  that  should  any  default  be  made  in  the  payment  of 
the  said  interest  or  any  part  thereof,  on  any  day  wherein  the 
same  was  made  payable  by  the  bond,  and  the  same  should  re- 
main unpaid  and  in  arrear  for  thirty  days,  then  and  in  that  case 
the  principal  sum  of  ^4:64:,  with  arrearages  of  interest  thereon, 
should,  at  the  option  of  the  obligee,  become  immediately  pay- 
able ;  and  that  if  the  payments  of  said  interest  were  promptly  ^ 
made,  then  at  the  obligee's  death,  the  debt  and  the  mortgage 
given  to  secure  the  bond,  should  cease  and  be  null.  A  default 
occurred  in  the  payment  of  the  annuities  of  interest ;  and  the 
obligee  gave  notice  of  her  option  to  consider  the  principal  Avith 
the  arrears  of  interest  presently  due  and  payable.  The  ques- 
tion was,  what  sum  was  due  on  the  bond  which  the  mortgage  in 
suit  was  given  to  secure.  A  decree  had  been  made  adopting 
the  sum  of  $4G4  mentioned  in  the  condition,  as  the  principal 
that  became  due  on  the  Breach  of  the  condition,  and  for  that 
sum  with  the  delinquent  interest  the  judgment  was  rendered. 
The  defendant  contended  that  the  sum  the  plaintiff  Avas  entitled 
to  recover  was  not  $464,  but  only  the  value  of  a  life  annuity  of 
$32.48  at  the  time  the  plaintiff  declared  her  option ;  at  which' 
time  she  was  fifty-two  or  fifty-three  years  of  age.  Such 
value,  computed  by  the  ISTorthampton  tables,  was  then  a  little 
less  than  $300.     Lyon,  J.,  said:  "The  covenant  was  voluntarily 

1  Lord  Ashtown  v,  Wliite,  11  Irish  L.  400 ;  McNitt  v.  Clark,  7  John.  465. 


500  CONVENTIONAL   LIQUIDATIONS    AND   DISCHAKGE8. 

made  by  the  obligor,  and,  so  far  as  appears,  he  received  there- 
for full  value  for  the  sum  which  he  agreed  to  pay,  at  the  option 
of  the  obligee,  in  case  of  default.  The  most  that  can  be  said 
against  the  justice  of  it  is,  that  the  damages  would  be  the 
same  if  default  were  made  and  the  option  declared  at  a  much 
later  period  in  the  life  of  the  obligee.  But  that  is  a  contingency 
Which  may  be  fairly  presumed  the  obhgor  took  into  considera- 
tion when  he  made  his  covenant;  and  it  was  always  in  his 
power  to  prevent  the  happening  of  such  contingency  by  paying 
the  annuity  which  he  covenanted  to  pay."  The  learned  judge 
added :  "  It  follows  that  the  sum  named  in  the  bond  is  to  be 
regarded  as  stipulated  damages,  unless  the  gross  value  of  the 
life  annuity  can  be  ascertained  by  some  exact  pecuniary  stand- 
ard." He  discusses  this  question  and  arrives  at  the  conclusion 
that  the  value  is  uncertain.  It  may  be  observed  of  that  method 
of  determining  whether  the  sum  mentioned  in  the  condition 
was  penalty  or  not,  would  be  very  proper,  if  it  be  assumed  that 
the  annuity  was  the  primary  object  of  the  arrangement,  and 
that  no  sum  was  originally  fixed  which  represented  the  value 
of  the  defendant's  undertaldng,  or  of  the  consideration  re- 
ceived; and  that  the  gross  sura  was  stipulated  as  the  valuation 
put  by  the  parties  on  the  annuity ;  and  equally  so,  if  the  case 
was  that  $464  was  a  sum  arising  in  their  transaction  which 
they  agreed  might  be  withheld  so  long  as  the  interest  on  it  was 
promptly  paid,  and  with  the  further  benefit  that  the  debt 
should  cease  at  the  creditor's  death,  otherwise  to  be  paid  at 
once;  then  the  case  stands  on  the  principle  of  Thompson  v. 
Hudson,  and  the  conditional  method  of  discharge  not  having 
been  strictly  followed,  the  dispensation  depending  on  it  failed, 
and  the  original  debt  remained  unsatisfied  and  absolute.^    "Where 

1  Berrinkott  v.  Traphagen,  39  Wis.  dollars,  with  interest  yearly  till  paid, 

219.     The    case    of     Long  worth    v.  and    payable    as    follows:    In    two, 

Askren,  15  Ohio  St.  370,  does  not  three,  four,  five,  six,  seven,  eight, 

aijpear  to  be  consistent  with  these  nine    and  ten  years,    equal  instal- 

views.     An  action  was  brought  to  ments,     with    interest    yearly,     as 

foreclose  a  mortgage  made  to  secure  aforesaid,  being  the  contract  price  of 

the  payment  of  this  note:  a  lot.'   But  if  each  and  every  pay- 

"  Cincinnati.  July  24,  1840.  ment  is  made  punctually  as  due,  or 

' '  For  value  received,  I  promise  to  before  due,  or  within  ten  days  after 

pay  N  L,  or  order,   one  thousand  each  is  due,  as  an  inducement  to 


STIPULATED    DA]VLA.GES. 


501 


a  large  sum  is  stipulated  to  be  paid  on  the  non-payment  of  a 
less  sum  made  payable  by  the  same  instrument,  the  former  is 
p7%ma  facie  a  penalty.  If  the  question  is  to  be  determined  by 
construction  of  the  instrument  alone,  it  would  be  deemed  a  pen- 
alty. May  the  real  transaction  be  investigated,  and  upon  proper 
facts,  a  different  interpretation  and  effect  be  given  to  the  agree- 
ment ?  No  language  of  the  contract  can  be  adopted  which  will 
shelter  a  penalty,  so  that  inquiry  may  not  be  made  into  the 


punctuality,  two  hundred  dollars 
of  the  amount  will  be  released. 
And  eight  liundred  dollars  and  its 
yearly  interest  accepted  in  full  pay- 
ment, but  not  otherwise." 

Before  the  ten  years  expired  full 
$800  and  annual  interest  on  that  sum 
had  been  paid;  but  the  payments  had 
not  been  made  according  to  the 
terms  of  the  contract  as  to  time  and 
amount.  The  court  held  that  the 
sum  of  11,000  was  penalty,  and  $800 
the  actual  debt  accordmg  to  the 
face  of  the  note.  White,  J.,  said: 
"  This  case  presents  the  single  legal 
question:  whether,  upon  the  true 
construction  of  the  mortgage  note 
sued  on,  the  one  thousand  dollars 
therein  mentioned  is  to  be  regarded 
as  a  penalty.  If  that  be  its  charac- 
ter, the  judgment  of  the  superior 
court  should  be  affirmed;  otherwise, 
it  should  be  reversed.  This  is  not 
the  case  of  an  agreement  for  the 
composition  of  a  subsisting,  inde- 
pendent indebtedness.  The  instru- 
ment in  question  creates  the  •  only 
debt. on  which  the  plaintiff  relies  for 
a  recovery.  Nor  can  the  claim 
made  by  plaintiff's  counsel  be  sup- 
ported, that  the  stipulation  for  the 
discharge  of  the  obligation  by  the 
punctual  payment  of  $800  in  instal- 
ments, is  a  privilege  given  to  the 
payer,  and  inserted  for  his  exclusive 
benefit.  This  claim  is  based  on  the 
assumption  that  the  $1,000  was  the 
sole  consideration  for  the  lot,  and, 


consequently,  is  the  amount  of  the 
actual  debt.  But  it  is  fair  to  pre- 
sume that  the  omission  of  the 
stipulation  in  regard  to  the  $800 
would  have  defeated  the  sale,  as 
that  the  insertion  of  the  $1,000 
secured  it.  The  transaction  was  the 
sale  of  the  lot;  and  the  instiiiment  in 
question  contains  the  terms  upon 
which  it  was  made.  All  the  stipula- 
tions, on  the  part  of  Ricords,  are 
supported  by  the  same  identical 
considei-ation.  It  is  not  to  be  pre- 
sumed that  the  sale  would  have 
been  concluded  had  any  of  the 
terms  actually  agreed  to  been 
omitted;  and,  as  the  terms  of  the 
sale  were  satisfactory  to  the  pai'ties, 
the  presumption  is  they  were  ac- 
quiesced in,  not  as  a  special  favor  to 
either,  but  for  the  mutual  benefit  of 
both.  Nor,  in  our  view,  does  the 
order  in  wliich  the  sums  are  stated 
change  their  character,  or  the  legal 
effect  of  the  instrument;  for, 
whether  the  amount  to  be  paid  is  to 
be  reduced  upon  compliance  with 
the  terms  of  i^ayment,  or  to  be  in- 
creased as  a  default,  is  only  a  differ- 
ent mode  of  expressing  the  same 
thing. 

"  AU  that  the  plaintiff,  at  the  time 
of  making  the  contract,  had  a  right 
to  expect,  was  the  payment  of  eight 
hundred  doUars,  with  the  interest, 
in  the  instalments,  and  at  the  times 
stipulated.  These  payments  Ri- 
cords    had      promised     to      make 


502 


CONVENTIONAIi   LIQUIDATIONS   AND   DISCHARGES. 


subject  matter  and  surroundings  to  ascertain  if  it  be  such.  TLe 
principle  is  often  declared  in  fbrins  that  permit  inquiry  to  go  to 
the  intrinsic  nature  of  the  transaction ;  and  a  large  sum  prom- 
ised as  a  consequence  of  the  non-payment  of  a  small  one,  will 
be  held  a  penalty,  whatever  may  be  the  language  describing  it.^ 
Wright,  C.  J.,  said  in  an  Iowa  case :  "  From  all,  however, 
we  may  deduce  one  point  as  settled.  Whether  the  sum  men- 
tioned shall  be  considered  as  a  penalty  or  as  liquidated  dam- 
ages, is  a  question  of  construction,  on  whicb  the  court  may  be 
aided  by  circumstances  existing  extraneous  to  the  writing.  The 
subject  matter  of  the  contract,  the  intention  of  the  parties,  as 
well  as  other  facts  and  circumstances,  may  be  inquired  into, 
although  the  words  are  to  be  taken  as  proved  exclusiv^ely  by 
the  writiuii'."  ^ 


punctually.  A  default  occurred; 
and  in  such  a  contract,  in  our 
opinion,  interest  is  to  be  regarded  as 
a  comijensation  for  the  injury 
caused  by  the  delay.  'All  beyond 
must  be  regarded  either  as  penalty 
or  liquidated  damages;  but,  under 
neither  form,  can  the  plaintiff  be 
allowed  to  recover  more  than  what 
the  law  deems  adequate  compensa- 
tion for  the  lireach. 

"It  is  to  be  noted  that  the  only 
evidence  of  tlie  terms  of  the  sale  is 
what  appears  from  the  instrument 
itself.  There  is  nothing  to  show 
that  the  contract  for  the  purchase  of 
the  lot  was  originally  made,  in  fact, 
at  a  thousand  dollars;  and  that  the 
remission  of  the  contract  price  to 
eight  hundred  dollars  was  the 
gi-atuitous  act  of  the  vendor.  If  the 
abatement  stood  on  this  footing, 
it  would  devolve  on  the  party  seek- 
ing its  benefit,  to  show  that  he  had 
complied  with  the  conditions  upon 
whicli  it  was  offered." 

This  opinion  bases  the  right  of  the 
debtor  to  discharge  the  bond  by 
payment  of  $800  on  its  being  re- 
served in  the  agreement  of  pur- 
chase; it,  however,  concedes  that  it 


was  equally  a  part  of  the  contract  of 
sale  that  $1,000  should  be  paid  if  aU 
the  instalments  should  not  be 
punctually  paid.  It  would  seem  to 
be  a  reciprocal  right  to  enforce  the 
bond  according  to  its  terms;  that 
there  was  as  ample  a  consideration 
for  the  agreement  in  either  alterna- 
tive, as  in  the  cases  of  Lord  Ash- 
town  V  White,  supra,  and  McNitt 
V.  Clark,  7  John.  465. 

1  Bagley  v.  Peddie,  5  Sandf.  192; 
Niver  v.  Rossman,  18  Barb.  55;  Mor- 
ris V.  McCoy,  7  Nev.  399. 

2  Foley  V.  McKeegan,  4  Iowa,  1; 
Perkins  v.  Lyman,  11  Mass.  76; 
Hodges  V.  King,  7  Met.  583;  Dennis 
V.  Cummins,  3  John.  Cas.  297.  In 
Morris  v.  McCoy,  7  Nev.  399,  Lewis, 
C.  J.,  said:  "  Although,  as  a  general 
rule,  it  is  acknowledged  that  the  in- 
tention of  the  parties  as  expressed 
in  the  contract  should  be  enforced; 
stiU,  it  is  clearly  ignored  in  that 
class  of  cases  where  the  parties  stip- 
ulate for  the  payment  of  a  large 
sum  of  money  as  damages  for  the 
non-payment  of  a  smaller  sum  at  a 
given  day.  In  such  cases,  it  is  said, 
no  matter  what  may  be  the  language 
of  the  parties,  the  large  sum  will  be 


STirULATED    DAMAGES,  503 

Stipulated  damages  where  damages  would  be  certain  and 
EASILY  troved. —  Ou  general  principles,  an  agreement  to  pay  a 
fixed  sum  as  damages  for  non-performance  of  a  contract,  where 
the  loss  or  injury  might  without  such  stipulation  be  easily  de- 
termined by  proof  of  market  values,  or  by  a  precise  pecuniary 
standard,  is  subject  to  nearly  the  same  criticism  as  a  contract  to 
Uquidate  damages  for  non-payment  of  money.  There  are  no 
pecuhar  reasons  why  a  stipulated  sum  should  be  treated  as  a 
penalty  for  exceeding  just  compensation  for  a  default  in  the 
payment  of  money,  and  not  be  so  treated  in  case  of  a  different 
agreement  where  the  excess  is  capable  of  being  made  equally 
manifest.^ 

In  money  contracts  any  rate  of  interest  not  prohibited  by 
statute  may  be  contracted  to  be  paid  as  interest  proper ;  that  is, 
during  a  period  of  credit ;  so  any  sum  may  be  contracted  to  be 
paid  for  proi)erty  or  services  in  a  contract  of  purchase  or  hiring. 
But  when  parties  contract  for  the  same  thing  in  advance  as 
damages,  a  considerable  excess  above  the  customary  rate  of  in- 
terest, or  the  market  value  of  property  or  other  thing,  will  raise 
the  inquiry  whether  such  excessive  sum  was  intended  to  be  paid ; 
or  whether,  even  if  intended  to  be  paid,  it  is  not  a  penalty.  It 
would  be  such  if  not  intended  to  be  paid  in  case  of  default ;  it 
would  be  such  if  not  fixed  on  the  basis  of  compensation.  In 
such  cases,  courts  generally  arrive  at  harmonious  conclusions  by 
diverse  modes  of  reasoning.  One  court  will  say  the  sum  fixed 
is  so  flagrantly  excessive  it  was  evidently  not  the  intention  of 
the  parties  that  it  should  be  paid  or  enforced,  and  therefore  it  is 
a  penalty.  Another  court  wiU  say  the  excess,  jper  se,  makes  the 
stated  sum  a  penalty,  and  the  intention  of  the  parties  is  simply 
immaterial. 

It  generally  occurs,  that  where  there  is  an  agreement  to  pay 
a  gross  sum  in  the  event  of  the  non-performance  of  a  contract, 

deemed  a  penalty,  and  not  liqiiidated  the  learned  judge  said  "that  was 
damages."  But  upon  an  exception  not  admissible,  because  there  was  no 
to  the  exclusion  of  parol  testimony  ambiguity;  and  it  must  be  supposed 
to  affect  the  question  where  the  that  the  agreement  was  fuUy  em- 
agreement  was  api)arently  of  this  bodied  in  the  written  instrument, 
nature,  and  such  extrinsic  evidence  1  Greenlf.  Ev.  §  275." 
was  offered  to  rebut  the  inference  i  Fisher  v.  Bidweli,  37  Conn.  363. 
that  the  larger  sum  was  a  penalty, 


504 


CONVENTION^U.    LIQUIDATIONS    AND   DISCHARGES. 


and  the  case  is  such  that  a  jury  can  ascertain  with  reasonable 
certainty  how  much  damages  the  injured  party  has  actually 
sustained  by  the  non-performance,  courts  are  strongly  inclined 
to  regard  the  gross  sum  as  a  penalty,  and  not  as  liquidated 
damages.^  If  the  intention,  however,  is  clear  to  liquidate  dam- 
ages, and  the  amount  is  either  not  greatly  above  or  below  the 
sum  which  would  otherwise  be  recoverable ;  or,  if  above,  was 
fixed  specially  to  cover  contemplated  consequential  losses,  not 
provable  under  legal  rules,  and  is  not  an  unreasonable  provis- 
ion therefor,  the  sum  fixed  may  be  sustained  as  hquidated 
damages.^  But  if  the  intention  be  doubtful,  or  the  amount 
materially  vary  from  a  just  estimate  of  compensation,  the 
stated  sum  will  be  considered  a  penalty.^ 

Stipulation     favoeably     construed    as    a    LiQuroATioN     or 

DAMAGES    AVHEN    DAMAGES     UNCERTAIN. If     a    COUtl'aCt    doeS   UOt 

afford  any  data  from  which  the  actual  damages  can  be  calcu- 
lated, this  circumstance  has  been  held  to  afford  a  reason  for 
regarding  a  stipulated  sum  as  liquidated  damages.*    This  test 


1  Spear  v.  Smith,  1  Denio,  464; 
Dennis  v.  Cummins,  3  John.  Ca. 
297;  Streeter  v.  Rush,  25  Cal.  67; 
Bright  V.  Rowland,  3  How..  (Miss.) 
398;  Scofield  v.  Tompkins,  95  111. 
190;  In  re  Newman;  Ex  garte  Cop- 
per, 4  Ch.  D.  724. 

In  Spencer  v.  Tilden,  5  Cow.  144, 
the  defendant  had  agreed  in  writing 
not  under  seal,  for  value  received, 
to  pay  $860,  or  twelve  cows  and 
calves,  to  be  paid  or  delivered  at  a 
place  mentioned,  in  four  years.  It 
was  held  that  the  value  of  the  con- 
sideration, and  of  the  cows  and 
calves,  might  be  inquired  into  to  see 
whether  the  sum  expressed  was  in- 
tended by  the  parties  as  penalty  or 
liquidated  damages;  and  it  appear- 
ing that  that  sum  was  much  be- 
yond the  value  of  either,  it  was  con- 
sidered in  tlie  nature  of  a  penalty, 
and  the  ijlaintiffs  recovery  was  con- 
fined to  the  value  of  the  cows  and 
calves.     See  note  at  end  of  the  case. 


2  Hodges  V.  King,  7  Met.  583; 
Maurice  v.  Brady,  15  Abb.  173; 
Durst  V.  Swift,  11  Tex.  273;  Walker 
V.  Engler,  30  Mo.  130;  Cotheal  v. 
Talmage,  9  N.  Y  551;  Fitzpatrick  r. 
Collingham,  14  Wis.  219;  Eastou  v. 
Penn.  &  Ohio  Canal  Co.  13  Ohio,  80; 
Tardeveau  v.  Smith's  Ex'r,  Hardin, 
175;  Walker  v.  Engler,  30  Mo.  130; 
Bradshaw  v.  Craycroft,  8  J,  J. 
Mfirsh.  79;  Hodges,  Ex  parte,  24 
Ark.  107;  Talcott  v.  Marston,  3 
Minn.  339;  Shreve  v.  Breretou,  51 
Pa.  St.  175;  Knapp  v.  Maltby,  13 
Wend.  587;  PoweU  v.  Burrows,  54 
Pa.  St.  329;  Johnston  v.  Cowan,  59 
Pa.  St.  275. 

3  Dennis  v.  Cummins,  3  John.  Cas. 
297;  Lindsey  v.  Anesley,  6  Ired.  188; 
Mills  V.  Fox,  4  E.  D.  Smith,  220; 
Esmond  v.  Van  Benschoten,  12 
Barb.  366;  Baird  v.  ToUiver,  6 
Humph.  186. 

*  Fletcher  V.  Dyche,  2  T.  R.  84. 


STIPULATED    DAilAGES. 


505 


would  include  among  those  deemed  uncertain  all  contracts 
which  require  any  extrinsic  evidence  to  ascertain  the  extent 
of  the  actual  injury.  Expressions  may  be  found  in  some 
cases  favoring  this  criterion  of  uncertain  damages.^  But  where 
the  damages  cannot  be  calculated  by  market  values,  nor  by  any 
precise  pecuniary  standard ;  or  where  from  the  peculiar  circum- 
stances which  the  contract  contemplates,  there  must  be  other 
uncertainty  affecting  the  practical  ascertainment  of  the  amount 
of  actual  loss,  the  law  favors  any  fair  adjustment  of  it  by 
stipulation.^  The  damages  resulting  from  breach  of  a  marriage 
promise ;  ^  of  an  agreement  not  to  engage  in  a  particular  occupa- 
tion or  business ;  *  and  damages  resulting  from  delay  in  completing 
particular  works,  or  in  doing  some  other  act  on  which  ulterior 
transactions  depend  ;5  or  damages  from  the  disclosure  of  the 


1  Bagley  v.  Peddle,  16  N.  Y.  469; 
Streeter  v.  Rush,  25  Cal  67;  Esmond 
V.  Van  Benschoten,  13  Barb.  366; 
Craig  V.  Dillon,  6  Up.  C.  Apps.  116. 

^1  Dane's  Abr.  549,  §  18;  Gammon 
V.  Howe,  14  Me.  250,  Tingley  v. 
Cutler,  7  Conn.  291;  Cotheal  v.  Tal- 
mage,  9  N.  Y.  551;  Bagley  v.  Peddie, 
16  N.  Y.  469;  Mundy  v.  Culver,  18 
Barb.  336;  The  Wolf  Cr.  Diamond 
Coal  Co.  V.  Sclmltz,  71  Pa.  St.  180; 
Bingham  r.  Richardson,  1  N.  C.  217; 
De  Groff  v.  The  American  L.  T  Co. 
24  Barb.  375;  Fisk  v.  Fowler,  10  Cal. 
512.  In  this  case,  an  ordinary  bond, 
with  condition  for  delivery  of  title 
to  a  boat  within  a  specified  time, 
was  held  to  liquidate  the  damages  at 
the  sum  stated  as  a  penalty. 

3  Lowe  V.  Peers,  4  Burr.  2225.  See 
Abrams  v.  Kounts,  4  Ohio,  214. 

<GrasseUi  v.  Lowden,  11  Ohio  St 
349;  Applegate  v.  Jacoby,  9  Dana, 
206;  Mott  V.  Mott,  11  Barb.  127 
Rawlinson  v.  Clarke,  14  M.  &  W.  187 
Hitchcock  v.  Coker,  6  Ad.  &  El  438 
Gatesworthy  v  Scott,  1  Exch.  659 
Green  v.  Price,  13  M.  &  W.  695 
Dakin  v.  WiUiams,  17  Wend.  244 
S.  C.  23  Wend.  210;  Lange  v.  Werk, 
3  Ohio,   519;  Gushing  v.   Drew,   97 


Mass.  445;  Atkyns  v.  Kennier,  4 
Exch  776;  Mercei  v.  Irvmg,  1  E.  B. 
&  E.  563;  Reynolds  v.  Bridge,  6  E. 
&  B.  528;  Nobles  v.  Bates,  7  CoweU; 
307;  Pierce  v.  FuUer,  8  Mass.  223; 
California  Steam  Nav.  Co.  v.  Wright, 
6  Cal.  258,  De  Groff  v.  The  Am. 
Linen  T.  Co.  24  Barb.  375;  Stewart 
v.  BedeU,  79  Pa.  St.  336;  Horner  v. 
Flintoff,  9  M.  &  W.  678;  Lightuer  v. 
Menzel,  25  Cal.  453;  Sainterv.  Fer- 
guson, 7  C  B.  716;  Davis  v.  Penton, 
6  B.  &  C.  216;  Bigony  v.  Tyson,  75 
Pa.  St.  157;  Holbrook  v.  Tobey,  66 
Me.  410;  Rielly  v.  Jones,  1  Bing. 
303;  Leighton  v.  Wales,  3  M.  &  W. 
545;  Crisdee  v.  Bolton,  3  C.  &  P.  340. 
5HaU  V.  Crowley,  5  Allen,  304; 
Curtis  V.  Brewer,  17  Pick.  513; 
Fletcher  v.  Dyche,  3  T.  R.  32;  Archi- 
bald V.  Wilson,  33  Upper  Can.  C.  P. 
590;  Hamilton  v.  Moon,  33  Upper 
Can.  C.  P.  100  and  520;  Gaskin  v, 
Wales,  9  Upoer  Can.  C.  P.  314; 
McPhee  v.  Wilson,  35  Upper  Can. 
Q.  B.  169;  Bergheim  v  Iron  Co.  44 
L.  J.  Q.  B.  93;  Fulsome  v.  McDon- 
ough,  6  Cush.  308;  Harmony  v.  Bing- 
ham, 2  Kern.  100;  Dunlop  v.  Gregory, 
10  N.  Y.  241;  Weeks  v.  Little,  47 
Super.    Ct.   (N.   Y.)  1;    WarreU    v. 


506  CONVENTIONAL    LIQUIDATIONS    AND    DISCIIAEGES. 

secrets  of  business,^  or  from  breach  of  an  agreement  to  abate  a 
nuisance,^  are  manifestly  of  that  nature ;  and  stipulations  fixing 
the  damages  for  the  total  loss  of  a  bargain  for  the  purchase  or 
leasing  of  lands  and  real  estate,''  or  of  personal  property,^  have 
also  been  frequently  sustained. 

There  is  more  or  less  uncertainty  in  everything  which  de- 
pends upon  the  opinion  or  memory  of  witnesses;  it  may  be  in- 
creased, in  the  sense  of  furnishing  a  motive  for  stipulating 
damages,  if  the  testimony,  under  the  circumstances  contem- 
plated by  the  contract,  would  be  at  a  great  distance ;  ^  or  must 
come  solely  from  the  defendant.**  In  a  contract  for  the  pur- 
chase of  several  city  lots,  from  one  having  still  a  large  num- 
ber to  sell,  the  purchaser,  in  consideration  of  having  the 
property  conveyed  to  him  for  twenty-one  thousand  dollars,  cov- 
enanted that  he  would,  by  a  certain  day,  erect  on  the  lots  so 
conveyed,  two  brick  houses  of  specified  dimensions,  or  in  de- 
fault thereof,  would  pay  on  demand  to  the  seller  the  sum  of 
four  thousand  dollars.  This  sum  was  held  to  be  liquidated 
damages.  "Whether  the  vendors  would  be  better  off  if  they 
got  the  money  than  they  would  have  been  had  the  houses  been 
erected,  must  from  the  nature  of  the  case  be  a  difficult  question 
to  decide ;  and  that  is  one  reason  why  the  parties  should  be 
left  to  settle  the  matter  for  themselves.^  In  another  case  an 
agreement  was  made,  simultaneously  with  a  sale  of  village  lots, 
by  the  purchaser,  that  he  w^ould  not  sell  spirituous  hquors  on 

McClanaghan,  5  Strob.  115;  Young  Beadle,  7  John.  73;  Lynde  v.  Thomp- 

V.  "White,  5  Watts,  560;  O'Donnell  V.  son,    2    Allen,    456;     Lampman    v. 

Rosenberg,  14  Abb.  N.  S.  59;  Pitts  v.  Cochran,  19  Barb.  388;  S.  C.  16  N.  Y. 

Bloomer,  21  How.  Pr.  317;  Crux  v.  275;  Mundy  v.  Culver,  18  Barb.  336; 

Aldred,  14  M.  &  W.  656;  Legge  v.  Clement  v.  Cash,  21  N.  Y.  253;  Has- 

Harlock,    12  Q.   B.    1015.     But    see  brouck  v.  Tappan,    15    John.    200; 

Wilcas  V.  Kling,  87  111.  107.  Harris  v.  Miller,  6  Sawy.  319. 

iNessle  v.  Reese,  29  How.  Pr.  382;  4Peirce  v.  Jung,  19  Wis.  30;  Allen 

Reindel  v.  Schell,  4  C.  B.  N.  S.  97;  v.  Brazier,   2  Bailey,    55;    Main,  v. 

Bagley  v.  Peddie,  16  N.  Y.  469.  King,    10  Barb.   49;    Knowlton    v. 

^Grasselli  v.  Lowden,  11  Ohio  St.  Mackey,  29  Upp.  Can.  C.  P.  601. 

349.  scotheal  v.  Talmage,  9  N.  Y.  551. 

3Leggett  V  The  M.  Life  Ins.  Co.  6  Bagley  v.  Peddie,  16  N.  Y.  469. 

50   Barb.    616;    S.    C.   64  N.  Y.  23;  ^Pearson  v.  Williams,  26  Wend. 

Heard  v.  Bowers,  23  Pick.  455;  Ting-  '630;  S.  C.  24  Wend.  246.     See  Chase 

ley  V.  Cutler,  7  Conn.  291;  Knapp  v.  v.  Allen,  13  Gray,  42. 
Maltby,  13  Wend.   587;  Slawson  v. 


STIPULATED   DA]SL\GES.  i>v< 

the  premises  purchased,  or  in  the  buildings  erected  thereon ;  and 
if  he  did  so,  he  should  be  liable  to  pay  the  vendor,  in  the  first 
case  a  fine  of  ten  doUars,  in  the  second  case  a  fine  of  twenty 
dollars,  and  for  each  subsequent  selhng  fifty  doUars.  It  "vvas 
held  that  the  contract  was  not  invalid  for  being  in  restraint  of 
trade ;  ^  but  the  "  fine  "  was  held  to  be  a  penalty  and  not  Hqui- 
dated  damages.- 

The  damages  for  breach  of  contracts  for  the  purchase  of  the 
good  will  of  an  established  trade  or  business,  or  for  the  with- 
drawal of  competition,  are  so  obviously  uncertain  that  courts 
have  recognized  the  fullest  hberty  of  parties  to  fix  before  hand 
the  amount  of  damages  in  that  class  of  cases.  In  the  decision 
of  such  cases  the  strongest  expressions  are  to  be  found  to  the 
effect  that  the  intention  of  the  parties  is  all-controlling,  and 
that  courts  have  no  power  to  defeat  that  intention  on  the  pre- 
text of  relieving  from  a  bad  bargain.  Eef erring  to  such  a  stip- 
ulation, Sedgwick,  J.,  in  an  early  Massachusetts  case,  said:  "  The 
parties  were  competent  in  law  to  make  a  contract  imposing 
a  hmited  restraint  on  the  defendant's  trade  for  the  plaint- 
iff's benefit  and  without  injury  to  the  public.  They  were  com- 
petent to  determine  on  what  consideration  it  should  be  made ; 
and  to  liquidate  the  damages  if  it  should  be  broken.  The  con- 
sideration of  one  dollar  is  a  valuable  consideration.  It  would 
be  sufficient  to  pass  by  sale  the  defendant's  stage  and  stage 
horses,  where  no  fraud  or  imposition  was  practiced.  The  parties 
have  considered  it  reasonable  and  adequate,  and  the  defendant, 
by  honestly  fulfilling  his  agreement,  might  have  protected  him- 
self from  the  forfeiture.  But  he  has  broken  it,  and  he  shall  not 
be  permitted  to  say  that,  although  the  contract  was  fakiy  and 
honestly  made,  and  for  a  valuable  consideration  to  which  he 
assented,  the  consideration  was  inadequate ;  that  he  made  a  bad 
bargain ;  and  that  when  the  plaintiff  has  suffered  by  a  breach 
of  it,  he  shall  be  relieved  from  the  terms  to  which  he  had  vol- 
untarily submitted."  * 

The  tendency,  however,  of  more  recent  decisions  is  against 

'  Laubenlieimer  v.  Mann,  17  Wis.  Dakin  v.  Williams,  17  Wend.  45 1, 

543.  '  per  Nelson,  C.  J.;  Streeter  v.  Rush, 

2  S.  C.  19  Wis.  519.  25  Cal.  67,  per  Rhodes,  J. 

3  Pierce   v.   Fuller    8    Mass.   323; 


508  CONVENTIONAL   LIQUIDATIONS    AND    DISCHARGES. 

holding  any  contract  for  liquidated  damages  to  be  binding  in 
this  absolute  sense.  Courts  more  generally  assume  the  jurisdic- 
tion to  declare  an  excessive  sum  mentioned  in  connection  with 
the  breach  of  any  contract  a  penalty.  If  the  disproportion  be- 
tween the  consideration  and  the  undertaking,  and  the  disparity 
between  the  probable  advantages  of  performance  and  the  sum 
agreed  to  be  paid  m  the  event  of  failure,  negative  the  intention 
to  limit  the  amount  to  just  or  reasonable  compensation,  it 
should  be  deemed  a  penalty,  however  uncertain  the  damages. 
The  same  principles  govern  this  stipulation  in  all  contracts,  but 
courts  will,  in  general,  enforce  such  stipulations  where  the  dam- 
ages are  uncertain ;  ^  because  the  parties,  when  no  fraud  or  op- 
pression is  practiced,  know  better  their  situations,  and  can  form 
a  more  correct  estimate  of  the  injury  than  a  court  or  jury. 
Because  the  damages  are  not  susceptible  of  precise  measure- 
ment, the  judgment  and  agreement  of  the  parties  should  have 
large  scope;  but  when,  as  sometimes  happens,  it  is  discovered 
that  such  stipulations  are  not  based  on  the  idea  of  compensa- 
tion, tliey  are  not  sustained.  This  will  be  particularly  seen  in 
the  instances  of  contracts  which  provide  the  same  sum  to  be 
paid  in  the  case  of  a  partial  or  of  a  total  breach. 

The  damages  which  may  result  from  delay  in  fulfilling  con- 
tracts for  particular  works,  or  for  performance  of  any  specified 
act  stipulated  to  be  done  and  completed  within  a  given  tune, 
are  not  always  of  the  most  uncertain  nature.  Damages  for 
failure  to  complete  a  house,  or  any  other  structure,  may  some- 
times be  ascertained  proximately  by  a  rental  standard.  But 
when  intended  for  a  particular  purpose  other  than  to  be  rented, 
and  when  delay  may  hinder  or  thwart  other  and  dependent 
contracts  or  enterprises,  then  the  damages  wih  be  more  uncer- 
tain. In  a  building  contract  containing  the  usual  clauses  fixing 
the  days  for  completing  the  various  parts  of  the  work,  and  a 
stipulation  to  the  effect  that  any  neglect  to  comply  with  the 
conditions  of  the  contract  and  finish  the  work  as  provided, 
should  entitle  the  employer  to  claim  damages  at  the  rate  of  ten 
dollars  per  day  for  every  day's  detention  so  caused,  was  held  a 

1  Hurst  V.  Hurst,  4  Excli.  571;  Atk.  190;  Allen  v.  Brazier,  2  Bailey, 
Ponsenby  v,  Adams,  2  Brown  P.  55;  Chase  v.  Allen,  13  Gray,  42; 
C.  436;  Roy  v.  Duke  of  Beaufort,  2     Pearson  v.  Williams,  26  Wend.  244. 


STIPULATED    DAilAGES.  509 

coYenant  for  stipulated  damages.^  So,  whore  a  party  covenants 
that  he  will  transport  and  deliver  goods  within  a  certain  time, 
and  also  that  he  will  deduct  a  sum  named  from  the  freight  each 
day  they  are  delaj'ed  beyond  the  time  specified  for  the  delivery, 
such  agreed  deduction  is  liquidated  damages.^  Under  peculiar 
circumstances,  an  agreement  to  pay  five  hundred  dollars  for 
failure  to  surrender  possession  of  leased  premises  at  a  certain 
date  was  held  liquidated  damages.  The  lessor  was  but  a  lessee 
himself,  under  stipulations  to  sm-render  a  month  later.  He  had 
authority  from  his  lessor  to  put  additions  and  improvements  on 
the  premises,  all  of  which  he  had  a  right  to  remove  at  the  end 
of  his  term.  It  was  considered  a  natural  and  reasonable  pro- 
vision that  the  sub-tenant  should  bind  himself  to  leave  the 
premises  a  month  before  the  landlord's  term  expired,  that  he 
might  have  suflBcient  time  to  remove  his  improvements,  and 
thus  escape  a  forfeiture  to  his  lessor.^ 

No  damages  could  be  more  uncertain  than  those  which  might 
result  from  delay  in  furnishing  for  publication  the  biography  of 
a  man  for  the  time  being  attracting  public  notice.  Such  a  man 
undertook  to  furnish  his  biography  for  publication  within  a 
specified  time,  and  for  every  day's  delay  beyond  that  time 
agreed  to  pay  $165.  In  a  suit  to  recover  for  a  delay  of  one 
hundred  and  sixty-one  days,  the  court  held  that  the  agreement 
could  not  be  hterally  enforced,  and  that  the  plaintiff  could 
only  recover  actual  damages.*     So,  a  contract  to  put  machinery 

1 0'Donnell  v.  Eosenberg,  14  Abb.  property    at     different    times,    and 

N.  S.  59;  Pettis  v.  Bloomei*,  21  How.  without  adverting  to  such  provision, 

Pr.  317;    Curtis  v.  Brewer,  17  Pick,  there  was  a  covenant  that  the  lessee 

513;  Archibald  v.  Wilson,  32  Upper  should  pay  $50  per  day,  as  stipulated 

Can.  C.  P.  590;  Hamilton  v.  Moore,  damages,  for  every  day  he  should 

83  Upper  Can.   C.  P.  100  and  520;  hold  over  after  the  termination  of 

Gaskin  v.  Wales,  9  Upper  Can.  C.  his  lease;  held,  that  as  the  provision 

P.  314;    McPhea  v,  Wilson,  25  Up.  as  to  damages  was  highly  penal,  and 

Can.  Q.  B.  164;  Bergheim  v  Blaca-  the  lease  admitted  of  two  constiiic- 

avon  Iron  &  L.  Co.  L.  R.  10  Q.  B.  319.  tions,  as  to  the  time  the  damages 

2  Harmony  v.  Bingham,  2  Kem.  should  begin  to  accrue,  they  would 
100;  Sparrow  v.  Parris,  7  H.  &  N.  not  be  considered  as  commencing 
594.  until  the  time  when  the  entire  prem- 

3  Paine  v.   Weber,  47  lU.  41.     In  ises  were  to  be  surrendered. 
Klingle  v.  Ritter,  54111.  140,  a  lease         *  Greer  v.  Tweed,  13  Abb.  N.  S. 
provided  for  the  surrender  by  the  427.     See    Laubenheimer   v.  Mann, 
lessee  of  different  portions  of  the  17  Wis.  543;  S.  C.  19  Wis.  519. 


510  CONVENTIONAL    LIQUmATlONS    AND    DISCHARGES. 

in  a  boat  for  $8,000,  on  or  before  a  certain  day,  "  under  a  for- 
feiture of  $100  per  day  for  each  and  every  day  after  the  above 
date,  until  the  same  should  be  com]-»leted  as  above,"  was  held  to 
provide  for  a  penalty  and  not  li(|uidated  damages.^ 

The  damages  which  may  result  from  a  mechanic  quitting  work 
contrary  to  his  contract,  are  uncertain;  but  every  stipulation 
purporting  to  fix  the  amount  he  shall  forfeit  or  pay  in  such  an 
event,  will  not  be  treated  as  stipulated.  Where  the  contract  of 
hiring  required  that  if  the  employee  quit,  without  giving  thirty 
days'  notice,  he  should  forfeit  all  wages  due  to  him  at  the  time 
of  leaving,  Campbell,  J.,  said;  "AYe  have  no  difficulty  in  hold- 
ing that  the  injury  caused  by  a  sudden  brealdng  off  of  a  contract 
of  service,  by  either  party,  involves  such  difficulties  concerning 
the  actual  loss,  as  to  render  a  reasonable  agreement  for  stipu- 
lated damages  appropriate.  If  a  fixed  smn,  or  a  maximum 
within  wiiich  wages  unpaid  and  accruing  since  the  last  pay-day 
might  be  forfeited,  should  be  agreed  upon,  and  should  not  be  an 
unreasonable  or  oppressive  exaction,  there  would  seem  to  be  no 
legal  objection  to  the  stipulation,  if  both  parties  are  equally  and 
justly  protected.  But  the  facts  set  forth  in  this  record  do  not, 
we  think,  bring  the  case  within  any  such  rule.  .  .  .  The  for- 
feiture under  the  contract  covers  aU  wages  due  at  the  time  of 
leaving.  This  is  open  to  the  objection  that  the  employer  may 
have  been  in  arrears,  and  thus  enabled  to  profit  by  his  own 
wrong.  No  such  forfeiture  could  be  enforced  against  wages,  as 
such,  which  the  workman  was  to  have  paid  to  him,  before  he 
committed  an37^  breach  of  his  duty.  Again,  it  does  not  appear 
how  often  wages  were  payable,  and  what  proportion  of  the  year's 
earnings  could  thus  be  withheld  for  a  breach  of  contract.  It 
would  not  be  reasonable  to  make  the  forfeiture  cover  a  very  long 
period.  The  inference,  in  the  absence  of  proof  to  the  contrary, 
would  be,  that  the  price  of  work  done  by  the  piece  might  not 
be  payable  at  the  same  intervals  as  ordinary  wages.  And,  inas- 
much as  the  periodical  earnings  of  such  laborers  could  not  be 
uniform,  it  would  be  difficult  to  sustain  an  agreement  for  stipu- 
lated damages,  unless  some  limit  should  be  fixed  beyond  which 
the  forfeiture  should  not  extend.     The  agreement  set  out  in  the 

iColwell  V,  Lawrence,  38  Barb.  316;  Van  Buren  v.  Digges,  11  How. 
643;  ColvvcU  v.  Faulks,  B6  How.  Pr.      U.  S.  461. 


STIPULATED   D.y»IAGES. 


511 


record  is  also  defective,  for  want  of  mutuality.  The  employer, 
GEL  failure  to  give  notice  before  dismissal,  is  subjected  to  a  pay- 
ment of  thirty  days'  wages.  This  stipulation,  when  apphed  to 
the  wages  of  piece  work,  is  entirely  vague  and  indeterminate. 
It  furnishes  no  standard  of  calculation,  and  lacks  the  first  es- 
sential of  stipulated  damages,  Avhicli  are  allowed  to  avoid 
uncertainty,"  ^ 


1  Richardson  v.  Woehler,  26  Mich. 
90;  Davis  v.  Freeman,  10  Mich.  188. 
In  this  case,  Manning,  J.,  said:  "  The 
plaintiffs  in  error  were  to  liave  $1.50 
per  M.  for  drawing  the  timber,  one 
dollar  of  wliicli  was  to  be  paid  as  the 
timber  was  drawn,  in  supplies  to  en- 
able them  to  carry  on  the  job;  and 
the  remaining  fifty  cents  in  cash, 
when  all  the  timber  was  drawn.  In 
the  language  of  the  contract,  '  it  be- 
ing understood  that  the  balance  kejit 
back  is  to  secure  the  completion  of 
this  contract;  and  it  is  hereby  agreed 
between  the  parties,  that  the  fifty 
cents  per  thousand  feet  is  settled, 
fixed,  and  hquidated  dainages,  in 
case  this  contract  is  not  completed 
by  the  said  first  party.'  They  hav- 
ing failed  to  draw  all  the  timber,  the 
question  is  whether  the  fifty  cents 
per  thousand  feet,  on  what  was 
drawn,  and  which  was  to  be  paid  on 
completion  of  the  contract,  is  to  be 
regarded  as  stipulated  damages,  or 
in  the  nature  of  a  forfeiture  or  pen- 
alty for  not  completing  the  contract. 
The  court  below  charged  the  jury 
that  the  fifty  cents  per  thousand 
feet  on  what  had  been  drawn  was 
stipulated  damages.  .  In  this  we 
think  the  court  en-ed.  If  stipulated 
damages  for  a  non-performance  of 
the  entire  contract,  the  defendant  in 
error  could  not  recover  any  other  or 
greater  damages  for  a  non-perform- 
ance, in  whole  or  in  part.  And  it 
would  follow,  that  he  would  recover 
no  damages  whatever  on  the  con- 
tract, had  the  plaintiff  in  error  re- 


fused to  draw  any  of  the  timber. 
Such  clearly  could  not  have  been  the 
intention  of  the  parties.  They  must 
have  intended  that  if  the  plaintiff  in 
en-or  should  draw  part  of  the  tim- 
ber, and  not  the  wliole,  they  should 
not  be  paid  the  fifty  cents  per  thou- 
sand feet  on  Avhat  had  been  drawn  by 
them.  That,  in  the  language  of 
the  contract,  should  be  'fixed  and 
liquidated  damages.'  If  the  con- 
tract had  provided  for  the  payment 
of  fifty  cents  per  tliousand  feet  as 
liquidated  damages  for  the  timber 
not  drawn,  the  case  would  be  alto- 
gether different.  For  the  nearer 
such  a  contract  was  completed,  the 
less  would  be  the  damages.  The 
damages  would  be  proportioned  to 
the  non-performance.  But  the  con- 
trary would  be  the  case  as  the  con- 
tract is,  if  the  fifty  cents  per  thousand 
is  to  be  regarded  as  liquidated  dam-- 
ages,  and  not  as  penalty.  For  the 
nearer  the  contract  is  completed,  the 
greater  are  the  damages  in  case  of 
f ailui-e.  Tiie  damages  for  not  draw- 
ing five  thousand  of  five  hundred 
thousand  feet,  would  be  $247.50, 
whereas  the  damages  for  failing  to 
draw  foiu-  hundred  and  ninety-five 
of  the  five  hundred  thousand,  would 
be  only  $2.50.  The  policy  of  the  law 
will  not  permit  parties  to  make  that 
liquidated  damages,  by  calling  it 
such  in  their  contract,  which  in  its 
nature  is  clearly  a  penalty,  or  for- 
feiture for  non-performance.  While 
it  allows  them,  in  certain  cases,  to  fix 
their  own  damages,  it  wiU  in  no 


512  CONVENTIONAL   LIQUIDATIONS   AND   DISCHARGES. 

The  inquiry  whether  a  fixed  sum  is  intended  as  penalty  or 
liquidated  damages  is  generally  answered  according  to  the 
equity  and  justice  of  the  particular  case.  If  the  damages  are 
uncertain  in  their  nature,  or  difficult  to  be  proved,  and  in 
applying  the  stipulation  to  the  case  the  result  is  not  manifestly 
at  variance  with  the  principle  of  just  compensation,  it  is  readily 
adopted  as  consistent  therewith.  In  such  cases,  the  intention 
is  inferred  from  these  circumstances,  and  the  language  of  the 
parties  is  very  liberally  construed  to  give  effect  to  it.  The  sum 
may  be  called  a  penalty  or  forfeiture ;  and  the  form  and  phi^ase- 
ology  may  be  vague  or  equivocal ;  and,  nevertheless,  the  sum 
stated  be  held  to  be  liquidated  damages.^ 

Some  differences  will  be  noticed,  resulting  from  a  stricter  ad- 
herence to  the  artificial  rules  of  construction  by  some  courts 
than  by  others.  On  the  other  hand,  where  the  actual  damages 
may  be  ascertained  by  mere  computation,  or  can  be  easily  es- 
tablished by  proof,  and  the  sum  stated  is  no  just  measm^e  of  the 
actual  loss  or  injury,  these  circumstances  prevail  against  very 
clear  .and  positive  expressions  of  intention  to  liquidate  damages.- 

In  other  cases,  of  neutral  circumstances,  the  language  and 
form  of  the  contract  may  alone  be  decisive.  All  doubts  as  to 
the  justice  of  the  stipulated  sum,  or  as  to  the  actual  inten- 
tion of  the  parties,  will  be  resolved  by  treating  it  a^  a 
penalty.  Many  stipulations  ostensibly  providing  a  remunera- 
tion to  be  paid,  or  in  some  way  to  inure  to  the  party  entitled  to 
the  benefit  of  the  contract,  in  case  of  a  breach,  have  been  held 
not  to  have  the  effect  to  liquidate  damages,  because  so  framed 
as  to  be  inconsistent  in  their  effect  with  the  idea  of  compensa- 
tion ;  either  for  the  reason  that  the  intention  to  hmit  the  com- 
pensation   for  breach  to   such    amount   as  the    provision   in 

case  permit  them  to  evade  the  law  Upham  v.  Smith,  7  Mass.  265:  Fisk 

by  agreement.     See  Jaquith  v.  Hud-  v.  Fowler,  10  Cal.  512;  Sparrow  t. 

son,  5  Mich.  123."  Stearns  v.  Barrett,  Paris,    7  H.    &  N.    594;  Yenner  v. 

1  Pick.  443.  Hammond,  36  Wis.  277;  White  v. 

iBoys  V.  Ancel,  5  Bing.  N.  C.  390;  Arleth,  1   Bond,  819;  Haymaker  v. 

Streeper  v.  Williams,  48  Pa.  St.  450;  Schroers,  49  Mo.  406. 
Bm-r  V.  Todd,  5  Wright  (Pa.),  206;         ■'Kemp  v.  Knickerbocker  Ice  Co. 

Bigony  v.    Tyson,   75    Pa.    St.    157;  51  How.  Pr.  31;  Kemble'v.  Farren,  6 

Pearson  v.  Williams,  26  Wend.  630;  Bing.  141;  Horner  v.  Flintoff,  6  M. 

Knapp  V.    Maltby,    13  Wend.    587;  &  W.  678. 


STIPULATED   DAMAGES.  513 

question  may  specify,  or  the  purpose  to  afford  compensation 
to  that  extent,  is  doubtful  in  view  of  the  special  facts  of  the 
case.  A  few  cases  may  be  profitably  consulted  as  illustrations 
of  the  uncertain  nature  of  such  stipulations,  and  how  much  at 
large  is  the  judicial  discretion  by  which  their  practical  effect  is 
governed.  In  a  late  case  in  New  York,  two  parties  agreed 
upon  an  exchange  of  real  estate;  each  agreed  to  deliver  a  deed 
of  his  property,  or  "  forfeit  the  sum  of  five  hundred  dollars." 
Upon  the  first  trial  the  court  held  this  to  be  a  provision  for 
liquidated  damages,  and  the  plaintiff  had  a  verdict  for  five  hun- 
dred dollars,  which  was  set  aside  on  the  defendant's  motion, 
upon  the  ground  that  the  court  erred  in  treating  that  sum  as 
other  than  a  penalty.  The  case  was  retried  upon  this  theory, 
and  resulted  in  a  verdict  for  the  plaintiff  of  a  thousand  dollars! 
against  his  request  and  exception  that  it  should  be  regarded  as 
stipulated  damages.  Tlie  defendant  then  sought  to  reverse  the 
judgment,  on  the  ground  that  the  sum  stated  in  the  contract 
was  not  a  penalty,  but  hquidated  damages.  The  ruling  that  it 
was  a  penalty  was  in  harmony  ^vith  the  defendant's  argument 
for  a  new  trial,  and  he  had  taken  no  exception  to  a  like  con- 
struction of  the  contract  on  the  new  trial.  lie  was,  therefore, 
not  in  a  situation  on  appeal  to  allege  that  that  construction  was 
erroneous.  Church,  C.  J.,  said :  "  It  is,  liowever,  proper  to  say 
that,  if  the  question  was  before  us,  we  should  hesitate  in  holding 
it  a  penalty ;  and  there  are  many  reasons  for  regarding  it  as  a 
provision  fixing  the  measure  of  damages  b}'"  the  parties.  The 
word  forfeit  is  not  conclusive.  A  fundamental  rule  upon  this, 
subject  is  that  the  words  employed  must,  in  general,  yield  to 
the  intention  of  the  parties,  as  evinced  by  the  nature  of  the 
agreement,  the  amount  of  the  sum  named,  and  all  the  surround- 
ing circumstances.  The  sum  named  is  reasonable  in  amount ;  it 
is  payable  for  one  breach,  viz.:  a  failure  to  deliver  a  deed;  and 
the  injury  is,  in  some  degree,  uncertain  in  amount  and  extent, 
and  might  depend  upon  many  unforeseen  contingencies.  These 
are  material  circumstances  favorable  to  an  inference  that  the 
parties  intended  to  fix  the  sum  as  the  measure  of  damages." 
But  that  question  being  precluded  by  the  absence  of  any 
objection  on  the  appeUant's  part,  the  judgment  was  aflBrmed.^ 

1  Nojes  V.  Phillips,  60  N.  Y.  408. 
Vol.  1  —  33 


614:  CONVENTIONAL   LIQUIDATIONS    AND   DISCHAKGES. 

In  a  still  later  case  in  the  same  state,  an  ice  company  agreed 
to  deliver  to  K  four  thousand  tons  of  ice  in  1870,  for  retail. 
Afterwards  the  company,  by  fraudulent  representations,  procured 
from  K  a  written  exoneration  as  to  all  the  ice  above  five  hun- 
dred and  eighty-seven  tons.  By  the  original  agreement,  K 
agreed  to  pay  the  ice  com})any  one  dollar  per  ton  for  each 
and  every  ton  that  he  failed  to  take  according  to  the  terms 
of  the  agreement ;  and  the  ice  company  agreed  to  forfeit  one 
dollar  per  ton  for  each  and  every  ton  that  they  failed  to  deliver, 
according  to  the  terms  of  the  agreement.  Tlie  contract  price 
of  the  ice  delivered  was  $2.50  per  ton,  and  the  market  price 
when  the  exonerated  quantity  should  have  been  delivered  was 
from  $14  to  $10  per  ton.  A  suit  ^vas  brought  for  rescission  of 
the  agreement  obtained  by  fraud,  reducing  the  quantity,  and  for 
damages.  The  rescission  w^as  granted,  and  the  next  question 
was  between  penalty  and  liquidated  damages,  under  the  one 
dollar  per  ton  clause  above  referred  to.  Larremore,  J.,  says : 
"  The  test  in  favor  of  the  latter  is  shown  ^  to  be  the  '  manifest 
dilRculty  in  ascertaining  the  damages  arising  from  the  breach ; 
a  fair  conclusion  that  the  amount  is  specified  and  agreed  on  for 
the  purpose  of  saving  the  expense^or  avoiding  the  difficulty  of 
proving  the  actual  damages,  and  especially  where  the  amount 
fixed  and  liquidated  is  not  far  beyond  what  might  probably  be 
expected  to  arise  from  a  breach  of  the  contract.'  .  .  .  Conced- 
ing, for  the  sake  of  the  argument,  that  the  sum  the  defendant 
was  to  forfeit  in  case  of  default  on  its  part  was  understood  anil 
accepted  as  the  extent  of  its  liability  when  the  contract  was  exe- 
cuted, can  any  inference  be  drawn  from  this  that  that  sum  w^as 
to  be  the  measure  of  damages  which  might  probably  be  ex- 
pected to  arise  from  a  fraudulent  breach  of  the  contract  to 
dehver  ice  as  agreed?  It  is  manifest  that  the  plaintiff  never 
contemplated  or  agreed  upon  a  basis  of  compensation  that 
would  give  the  defendant  the  benefit  of  its  own  fraud.  What, 
therefore,  the  parties  did  not  originally  intend,  the  court  will 
not  now  enforce,  especially  when  it  appears  that  the  sum  stip- 
ulated is  so  inadequate  to  the  loss  occasioned  by  the  defendant's 
own  wrong."  *     In  another  case,  of  a  building  contract,  the 

1  In  Cotheal  v.  Talmage,  9  N.  Y.  -  Kemp  v.  Knickerbocker  Ins.  Co. 
551.  51  How.  Pr.  31;  Basye  v.  Ambrose, 


STIPULATED   DAMAGES. 


bii) 


builder  was  to  receive  for  the  completed  house  $4,600 ;  and  the 
contract  contained  the  provision  that  the  builder,  who  was 
the  plaintiff,  should  "forfeit  ten  per  cent,  on  the  whole  amount  if 
tlie  said  house  is  not  entirely  completed  and  fit  to  occupy  at  the 
time  agreed  upon."  Daniel,  J.,  said :"  The  clause  .  .  .  can-, 
not  properly  be  regarded  as  an  agreement  or  settlement  of  liqui- 


ds Mo.  39.  See  Lowiy  v.  Burrell, 
21  Ohio  St.  324.  In  this  case,  one 
pai'ty  offered  to  sell  and  deliver  at  a 
specified  time  and  place  two  thou- 
sand five  hundred  cubic  feet  of 
ItaHan  marble,  at  $2,133^  per  foot, 
and  there  was  added  the  following 
provisions :  ' '  For  non-compliance 
with  this  contract  by  either  party, 
the  penalty  shall  be  as  foUows:  If 
the  parties  of  the  first  part  are  not 
themselves,  or  agents,  on  the  spot 
twenty  days  after  the  stipulated  no- 
tice be  given,  then  the  parties  of  the 
second  part  shall  be  at  liberty  to  sell 
said  marble  just  as  if  consigned  to 
them,  and  claim  of  said  first  parties 
the  ditl'erence  between  the  net 
amount  that  the  marble  sold  at,  and 
Avliat  they  bound  themselves  to  pay 
for  it,  say  $2,123^  per  cubic  foot; 
provided  always,  that  said  difference 
shall  never  exceed  thirty-seven  and 
one-half  cents  per  cubic  foot,  which 
difference  shall  be  paid  down,  -in 
cash  at  once,  without  any  difficulty; 
and  should  the  jjarties  of  tlie  second 
part  fail  to  deliver  within  the  speci- 
fied time  the  quantity  of  mai-ble 
above  mentioned,  the  jjarties  of  the 
first  part  shall  be  at  liberty  to  buy 
the  same  quantity  of  marble  at  the 
market  price,  and  chai'ge  the  differ- 
ence, if  any,  to  the  parties  of  the 
second  part;  provided  always,  that 
the  difference  of  the  marble  so  pur- 
chased shall  not  exceed  thirty-seven 
and  one-half  cents  per  cubic  foot  of 
the  price  fixed  by  this  agreement, 
and  that  the  terms  of  payment  be 
cash."    The  vendee  Bued  the  vendor 


and  assigned  as  a  breach  the  non- 
delivery of  the  marble.  The  jury 
found,  among  other  things,  that 
"  the  defendants  refused  to  perform 
the  agreement  on  their  part;  that 
the  plaintiffs  did  not  purchase,  nor 
attempt  to  purchase,  marble  corre- 
sponding to  that  described  in  the  con- 
tract, before  bringing  suit;  that  such 
a  lot  of  marble  could  not  have  been 
purchased  in  New  Orleans,  where 
the  contract  was  made;  that  the  dif- 
ference between  the  market  price 
and  the  contract  price  on  the  day  of 
breach  was  greater  than  thirty-seven 
and  a  half  cents  per  foot;  that  the 
damages  of  the  plaintiff  amount  to 
$1,516.62,"'  for  which  sum  the  jury 
returned  their  verdict.  A  motion 
for  a  new  trial  was  made,  on  the 
ground,  among  others,  that  the  ver- 
dict was  contrary  to  the  law  and  the 
evidence.  On  this  motion,  it  was 
contended,  on  behalf  of  the  defend- 
ants, "  that  the  sum  of  thii'ty-seven 
and  a  half  cents  per  foot  is  in  the 
nature  of  a  limitation  of  damages, 
and  not  actual  or  liquidated  dam- 
ages, and  is  the  utmost  that  the  par- 
ties can  recover."'  This  point  was  not 
noticed  in  the  opinion  which  was 
advex'se  to  the  motion,  and  judg- 
ment was  ordered  to  be  rendered  on 
the  verdict.  Mcllvaine,  J.,  said; 
"  It  is,  no  doubt,  competent  for  par- 
ties to  limit,  by  express  stipulation, 
the  amount  of  damages  to  be  recov- 
ered in  the  event  of  a  breach  of 
their  contract;  or  to  make  the  right 
to  recover  at  all  to  depend  upon  a 
particular  event;  or  they  may  agrcf 


il6 


COirVENTIONAL   LIQUIDATIONS    AKD  DISOHAEGES. 


dated  damages.  The  term  forfeiture  imports  a  penalty ;  it  has 
no  necessary  connection  witli  the  measure  or  degree  of  injury 
which  may  result  from  a  breach  of  contract  or  from  an  imper- 
fect performance.  It  implies  an  absolute  infliction  regardless  of 
the  nature  and  extent  of  the  causes  by  which  it  is  superinduced. 
Unless,  therefore,  it   shall  have  been  expressly  adopted  and 


that  damages  shall  not  be  recovered 
in  any  event  for  a  violation  of  the 
contract;  thus  making,  what  would 
otherwise  be  a  contract  binding  in 
law,  a  mere  option  on  the  part  of 
the  promisor  to  do  or  not  to  do,  as 
he  may  choose.  In  our  opinion,  the 
contract  between  the  parties  in  this 
case  was  of  the  first,  and  not  of  the 
second  or  third  classes  named.  Tak- 
ing it  all  together,  we  believe  the 
parties  intended  to  secure  the  per- 
formance at  what  they  supposed 
would  be  a  reasonable  compensation 
to  the  injured  party,  in  case  of  a  de- 
fault by  the  other,  in  not  receiving 
or  delivering  the  marble. 

"  It  cannot  be  doubted,  that  the 
parties  intended  to  bind  each  other 
by  this  contract  to  the  purchase 
and  sale  upon  the  terms  named 
therein.  For  the  breach  of  every 
contract,  the  law  impUes  damages; 
and  to  escape  the  consequence  of 
this  rule  of  law,  the  party  in  default 
should  be  able  to  show,  that  dam- 
ages had  been  waived.  In  this  con 
tract,  no  waiver,  or  exemption  from 
damages  upon  the  state  of  facts 
found  in  the  special  verdict,  is  ex- 
pressed; nor  can  it  be  inferred,  ex- 
cept upon  the  principle  that  expres- 
sio  uniiis  est  exclusio  alterius.  Tliis 
maxim,  however,  should  not  be  ap- 
plied in  a  case  where,  by  fair  con- 
struction of  the  whole  instrument,  a 
different  intention  can  be  ascer- 
tained. .  .  .  Whatever  might  h'ave 
been  the  law  of  this  case,  had  there 
been  such  marble  in  the  market,  at 
the  time  of  the  defendant's  default. 


we  are  of  opinion  that  the  plaintiffs, 
under  the  state  of  facts  found  in  the 
special  verdict,  were  excused  not 
only  from  making  a  purchase  of  a 
like  quantity  of  marble  in  the  mar- 
ket, but  also  from  any  vaiu  and 
fruitless  effort  to  do  so." 

In  Grand  Tower  Co.  v.  Phillips,  23 
WaU.  471,  a  company  having  coal 
mines  agreed  to  deliver  150,000  tons 
of  coal,  the  product  of  its  mines,  to 
P  at  $3  a  ton  during  the  year  1870,  ia 
equal  daily  proi^ortious,  between  the 
loth  of  February  and  the  15th  of 
December;  that  is  to  say,  15,000 
tons  each  month.  The  contract  con- 
tained tliis  provision:  "  If  through  no 
fault  of  the  parties  of  the  second 
part  (P),  the  party  of  the  first  part 
(the  company)  shall  faU.  in  any  one 
month  to  deliver  all  or  any  part  of 
the  quota  of  coal  to  which  the  par- 
ties of  the  second  part  may  be  en- 
titled in  such  month,  the  party  of 
tha  first  part  shall  pay  to  the  parties 
of  the  second  part,  as  Mquidated 
damages,  twenty-five  cents  per  ton 
for  each  and  every  ton  which  it  may 
have  so  failed  to  deliver;  or  instead 
thereof,  the  parties  of  the  second 
part  may  elect  to  receive  all  or  any 
part  of  the  coal  so  in  default  in  the 
next  succeeding  manth,  in  which 
case,  the  quota  which  the  party  of 
the  first  part  would  otherwise  have 
been  bound  to  dehver  under  this 
contract,  shall  be  increased  in  such 
succeeding  month  to  the  extent  of 
the  quantity  in  default."  Coal  rose 
greatly  in  value,  that  is  to  say,  from 
about  .$3  a  ton  to  $9;  and  without  the 


STTPULATED  DAMAGES. 


51' 


declared  by  the  parties  to  be  a  measure  of  injury,  or  compensa- 
tion, it  is  never  taken  as  such  by  courts  of  justice."  ^  The  lessor 
for  A'ears  of  part  of  a  steam  mill  covenanted  with  his  lessee  to 
furnish  him  with  a  certain  amount  of  steam-power  during  every 
worldng  day  in  the  year,  and  that,  if  at  any  time  he  should  fail 
to  do  so,  the  rent  should  cease  during  the  time  of  such  failure. 
The  lessee  had  taken  a  lease  of  five  years  for  the  purpose  of  car- 
rpng  on  business,  and  had  placed  machinery  on  the  premises 
on  the  faith  of  the  lessor's  covenant  to  furnish  hun  steam-power 
to  work  it.  Soon  after  his  work  commenced,  the  lessor  with- 
held all  the  power  and  thus  broke  up  his  business.     On  these 


fault  of  P  the  company  did  fail  to  de- 
liver the  quota  — 15,000  tons  —  due 
in  October,  and  P  thereupon  elected 
and  gave  notice  of  the  election  to  take 
the  said  quota  in  November.  But  the 
company  failed  to  deliver  it  then, 
and  failed  also  to  deliver  the  quota  — 
15,000  tons  —  due  in  November.  P 
then  elected  and  gave  notice  of  his 
election  to  take  in  December  the 
quota  due  in  November,  as  also  that 
due  in  October.  No  coal,  however, 
was  delivered  at  any  time,  and  P 
brought  suit  for  damages.  It  was 
held  that  the  plaintiffs  were  entitled 
to  their  actual  damages,  and  were 
not  lunited  to  twenty-five  cents  per 
ton.  Bradley,  J.,  said:  "The  ques- 
tion whether  this  view  is  right  or 
not  depends  upon  the  true  construc- 
tion of  the  agreement  made  by  the 
parties.  .  .  .  It  is  evident  from 
an  inspection  of  the  contract,  tha,t 
the  election  given  to  the  plaintiffs  to 
receive  in  the  following  month  the 
coal  which  they  were  entitled  to  re- 
ceive, and  did  not  receive,  in  a  partic- 
ular month,  was  a  substitute  for  the 
liquidated  damages  of  twenty-five 
cents  per  ton.  With  regard  to  that 
particular  amount  of  coal,  the  rule 
of  liquidated  damages  was  at  an 
end.  The  agreement  did  not  carrj' 
it  forward  to  the  foUowiag  month. 
It  imposed  upon  the  defendant  the 


obligation,  if  the  plaintiffs  so  elected, 
to  furnish  the  coal  itself  instead  of 
paying  the  liquidated  sum.  If  not 
so,  what  was  the  option  worth  ?  It 
amounted  to  nothing  more  than  the 
right  of  giving  to  the  defendant  an- 
other month  to  furnish  the  coal. 
Surely  they  would  have  had  that 
right  without  stipulating  for  it  in 
this  solemn  way.  Had  not  this  op- 
tion been  given  to  the  plaintiffs,  the 
defendant  would  have  had  the  option 
either  to  furnish  the  coal  or  to  i>aj 
the  twenty-five  cents  per  ton  for  not 
furnishing  it  —  a  sum  wliich  they 
could  very  well  afford  to  pay 
upon  a  slight  rise  in  the  market 
prices.  It  was  evidently  the  veiy 
purpose  of  the  option  given  to  the 
plaintiffs  to  avoid  this  oppressive  re- 
sult. They  could  require  the  coal  to 
be  delivered  at  all  events,  and  if 
they  elected  to  do  this,  it  was  the 
duty  of  the  defendant  to  furnish  it. 
The  contrary  construction  would 
make  the  stipulation  worse  tlian 
useless.  The  plaintiffs  might  con- 
tinue to  exercise  their  election  to  re- 
ceive the  coal,  month  after  month, 
without  avail,  and,  at  the  end,  find 
themselves  exactly  at  the  point  they 
started  from  —  forced  to  accept  the 
twenty-five  cents  per  ton." 

1  Van  Buren  v.  Digges,  11   How. 
U.  S.  461. 


518 


CONVENTIOX^U:.    LIQtTIDATIOISrS    AND   DISCHAEGES. 


facts,  the  court  held  that  the  suspension  of  rent  was  not  full 
satisfaction  of  the  damages ;  the  court  was  not  satisfied  that 
the  lessee  had  agreed  to  accept  a  suspension  of  rent  as  a  full 
compensation  for  such  an  entire  breach  of  the  covenant.^ 


1  Fisher  v.  Barrett,  4  Ciish.  381. 
In  Newlin  v.  Pyne,  40  Iowa,  166, 
there  was  an  agreement  between 
the  parties  for  exchange  of  farms, 
and  it  contained  this  clause:  "  It  is 
also  understood,  that,  in  case  the 
said  P  fails  to  make  said  convey- 
ance, as  aforesaid,  then  he  agrees  to 
pay  said  N  for  all  plowing  done  by 
hmi  on  said  land." 

The  question  was,  whether  N  was 
entitled  to  any  other  damages.  It 
was  contended  by  tlie  other  party 
that  he  was  not. 

Day,  J.:  " This  position  would  be 
correct,  if  the  parties  to  a  contract 
must  stipulate  for  the  damages  to  be 
recovered  in  order  that  they  may 
recover  any.  But  the  law,  of  itself, 
attaches  to  the  breach  of  every  con- 
tract the  right  to  recover  proper 
damages.  That  the  parties  have  ex- 
pressly provided  for  the  payment  of 
some  of  the  damages,  which,  per- 
haps, the  law  would  not  have 
awarded  without  such  provision, 
cannot  be  construed  to  be  a  waiver 
of  the  right  to  recover  other  damages 
which  the  law  permits.  In  order  to 
defeat  the  recovery  of  such  damages, 
it  must  clearly  appear  that  the 
parties  have  stipulated  for  all  the 
consequences  which  they  intend 
shall  follow  a  breach  of  their  agree- 
ment. It  is  plain  that  this  agree- 
ment more  particularly  refers  to 
certain  incidental  damages,  which 
might  not  arise  at  all,  whilst  as  to 
the  principal  damages,  and  which 
arc  certain  to  follow  a  breach  of  the 
contract,  if  it  was  an  advantageous 
one  to  the  plaintiff,  the  contract  is 
silent." 

In  Potter  v.  McPherson,  61   Mo. 


S40,  there  was  a  contract  between 
the  parties  for  constructing  a  rail- 
road, by  the  terms  of  which  pay- 
ments wei"e  to  be  made  by  the  em- 
ployer in  monthly  instalments,  ten 
per  cent,  being  reserved  by  him  un- 
til the  completion  of  the  work,  "as 
security  for  the  faithful  performance 
of  the  contract;"  and  in  case  of  cer- 
tain breaches  of  the  contract,  on  the 
part  of  the  contractor,  the  amounts 
reserved  were  to  be  absolutely  for- 
feited to  the  other  party.  Held, 
that  the  amounts  so  to  be  retained 
were  not  liquidated  damages  for 
such  breaches,  but  the  contractor 
could  recover  the  entix'e  sum  agreed 
upon,  less  the  damages  which  in 
fact  might  be  sustained  by  reason 
of  his  non-compliance  with  the  con- 
tract. Hough,  J.,  said:  "  To  hold 
otherwise  in  such  a  case,  would  jiro- 
duce  the  grossest  inequality  and  in- 
justice. The  amount  forfeited  might 
bear  no  just  relation  to  the  damage 
suffered.  The  more  nearly  the  con- 
tract approaches  completion,  the 
greater  would  be  the  reserve,  and 
the  less  would  be  the  damage.  As 
the  damage  diminished,  the  sum  for- 
feited would  increase."  Savannah, 
etc.  R.  R.  Co.  v.  CaUahan,  56  Ga. 
331.  See  Phelan  v.  Albany,  etc.  R. 
R.  Co.  1  Lans.  258;  Jemmison  v. 
Gray,  29  Iowa,  537;  Faunce  v,  Burke, 
16  Pa.  St.  469;  Hennessey  v.  Farrell, 
4  Cush.  267;  Jackson  v.  Cleveland, 
19  Wis.  400. 

Easton  v.  Penn.  &  Ohio  Canal  Co. 
13  Ohio,  79.  Tills  was  a  similar  case, 
the  contract  providing  for  monthly 
payments,  and  a  reserve  of  fifteen 
per  cent,  to  insure  the  completion  of 
tlie  work;  and  it  also  provided  that 


STIPULATED   DAMAGES. 


5ir> 


The  general  doctrine  was  well  summed  up  in  a  Peansylvania 
case.  The  owners  of  a  hotel  had  agreed  to  sell  it  for  fourteen 
thousand  dollars,  of  which  three  thousand  dollars  was  to  be  paid 
at  a  specific  time,  and  a  deed  was  to  be  made ;  part  possession 
wfis  to  be  delivered  at  once ;  and  in  the  contract  the  parties 
am'eed  to  forfeit  five  hundred  dollars  in  case  either  failed  to  com- 


in  case  of  too  slow  progress  of  the 
work,  aud  in  certain  other  con- 
tingencies, the  president  of  the  com- 
pany or  the  engineer  should  have 
power  to  determine  the  contract  had 
been  abandoned,  and  such  deter- 
mination shall  put  an  end  to  it,  and 
exonerate  the  company  fi-om  every 
obligation  arising  therein,  and  then 
the  job  might  be  disposed  of  as 
though  the  contract  had  never  ex- 
isted. It  was  declared  abandoned 
because,  in  the  opinion  of  the  engi- 
neer, the  work  was  not  being  prose- 
cuted with  sufficient  force  to  ensure 
its  completion  within  the  time 
agreed  on.  Suit  \^^as  brought  by 
the  contractor  to  recover  the  fifteen 
per  cent,  reserved  in  monthly  paj^- 
ments  for  work  done.  Woods,  J., 
said:  "Tlie  contract  may  be  sup- 
posed to  be  severe  upon  the  plaintiffs. 
They  were,  however,  by  no  means 
forced  to  execute  it.  It  was  volun- 
tary. By  its  terms,  extensive  con- 
trol over  the  woi'k  is  conferred  upon 
the  defendant,  and  great  confidence 
reposed  in  the  honest  and  faithful 
exercise  of  his  discretion.  If  the 
defendant  has  violated  neither  its 
letter  nor  its  spii-it,  it  is  difficult  to 
see  what  reasons  the  plaintiffs  have 
for  complaint.  We  sit  here  to  en- 
force the  contracts  made  by  others, 
but  we  have  no  authority  to  impose 
upon  them  obligations  to  which  they 
have  never  assented.  The  plaintiffs 
were  to  be  paid  monthly,  on  esti- 
mates made  monthly  by  the  engi- 
neer. It  has  been  done.  Fifteen 
])er    cent,   was    to   be    retained    to 


ensure  the  completion  of  the  work. 
The  defendant  kept  back  this 
amount.  If  the  contract  was  de- 
clared abandoned,  the  determination 
of  the  president  or  engineer  is  con- 
clusive. The  contract  is  at  an  end, 
and  the  defendant  exonerated  from 
every  obligation  tlience  arising,  by 
express  agreement.  It  is  insisted 
that  when  the  whole  work  is  com- 
pleted, the  fifteen  per  cent,  may  be 
recovered  by  the  plaintiffs.  Had 
they  finished  the  wox'k,  the  position 
would  be  correct,  but  if  the  contract 
is  abandoned,  relet,  and  others  com- 
plete the  work,  the  amount  retained 
as  securit}^  is,  in  its  nature,  hquidated 
damages.  If  it  were  not  so  intended, 
there  would  be  no  security  in  the 
retention  of  this  amount.  .  .  . 
The  president  or  engineer  is  the 
umpire  between  the  i^arties.  His 
determination  ends  the  contract  and 
exempts  the  company  from  its  obli- 
gations. The  agreements  of  tho 
parties  are  the  law  by  which  their 
rights  are  to  be  deterniiued,  and  I 
am  extremeh'  doubtful,  at  least, 
wliether  any  court  can  legitimately 
interfere  and  upset  tlieir  arrange- 
ments, where  an  honest  discretion 
has  been  exercised,  where  neither 
fraud  nor  circumvention  has  inter- 
vened. I  am  instructed  by  my 
brethren,  however,  to  say,  as  the 
opinion  of  the  court,  that  in  this 
class  of  cases  the  subject  is  open  to 
inquiry  whetlier  the  contractors  had 
done  any  act,  oromitteil  tlie  perfonn- 
ance  of  any  duty,  which,  within  the 
terms  of  the  contract  between  the 


520  CONTENTIONAI-   LIQinHDATIONS'  AND   DISCIIAEGES. 

ply  with  its  terms.  It  was  held  that  the  forfeiture  was  intended 
by  the  parties  as  a  compensation  to  either,  in  case  the  other 
wholly  al:)andoned  the  contract ;  and  that  it  was  liquidated  dam- 
ages, and  not  a  penalty.  As  the  general  rule  of  damages  might 
not  embrace  all  the  compensation  the  parties  deemed  would  be 
due,  in  view  of  tlie  probable  risk,  troul)le,  loss  and  expense,  inci- 
dent to  the  comtemplated  change  on  the  part  of  eitlier  party, 
they  were  regarded  as  having  fixed  the  sum  stipulated  as  the 
amount  of  damage  each  would  suffer  from  a  total  failure ;  and 
the  word  "forfeit"  was  outweighed  by  the  other  elements  of 
interpretation  and  meant  "  to  pay."  Agnew,  J.,  said  :  "  It  is 
unnecessary  to  examine  the  numerous  authorities  in  detail,  for 
they  are  neither  uniform  nor  consistent.  IN'o  definite  rule  to  de- 
termine tlie  question  is  furnislicd  by  them,  each  being  deter- 
mined more  in  direct  reference  to  its  own  facts  than  to  any 
general  rule.  In  the  earlier  cases,  the  courts  gave  more  weight 
to  the  language  of  the  clause,  designating  the  sum  as  penalty  or 
as  liquidated  damages.  The  modern  authorities  attach  greater 
importance  to  the  meaning  and  intention  of  the  parties.  Yet  the 
intention  is  not  all-controUing,  for  in  some  cases  the  subject  mat- 
ter and  surroundino-s  of  the  contract  will  control  the  intention 
where  equity  absolutely  demands  it.  A  sum  expressly  stipulated 
as  hquidatod  damages,  will  be  relieved  from,  if  it  is  obviously  to 
secure  payment  of  another  sum,  capable  of  being  compensated 
by  interest.  On  the  other  hand,  a  sum  denominated  a  penalty 
or  forfeiture,  will  be  considered  liquidated  damages  where  it  is 
fixed  upon  by  the  parties  as  the  measure  of  the  damages,  because 
the  nature  of  the  case,  the  uncertainty  of  the  proof,  or  the 
difficulties  of  reaching  the  damages  by  proof,  have  induced 
them  to  make  the  damages  a  subject  of  previous  adjustment.  In 
some  cases  the  magnitude  of  the  sum,  and  its  proportion  to  the 
probable  consequence  of  a  breach,  will  cause  it  to  be  looked  upon 
as  minatory  only.  Upon  the  whole,  the  only  general  observa- 
tion we  can  make  is,  that  in  each  case  we  must  look  at  the  Ian- 
parties,  would  justify  the  president  conferred,  to  abandon  the  contract, 
or  engineer  in  declaring  it  aban-  ought  not  to  shield  the  defendant 
doned;  and  if  no  such  act  had,  in  from  the  payment  of  the  per  centum 
fact,  been  done,  nor  duty  omitted,  so  retained.'' 
the  honest  exercise  of  the  discretion 


STIPULATED   DAMAGES.  521 

guage  of  the  contract,  the  intention  of  the  parties  as  gathered 
from  all  its  provisions,  the  subject  of  the  contract  and  its  sur- 
roundings, the  ease  or  dilHculty  of  measuring  the  breach  in  dam- 
ages, and  the  sum  stipulated,  and  from  the  whole  gather  the 
view  which  good  conscience  and  equity  ought  to  take  of  the  case.' 

Stipulations  for  rATJiiENT  of  a  fixed  sum  fok  either  partial 
OR  total  breach. —  Contracts  often  contain  a  variety  of  stipula- 
tions, wliich  are  of  unequal  importance;  and,  therefore,  admit- 
ting of  many  breaches,  for  which  the  damages  would  be  different 
in  amount.  In  such  a  case,  a  total  breach  would  involve  an 
injury  greater  than  that  which  would  result  from  an  infrac- 
tion of  a  particular  stipulation.  Hence,  it  is  self-evident  that  a 
sum  stipulated  to  be  paid,  either  for  breach  of  one  of  the  minor 
provisions,  or  of  the  whole  contract,  could  not  be  a  hquidation 
of  damages  on  the  principle  of  compensation  for  actual  injury. 
The  sum  would  either  be  too  great  for  a  partial  breach  or 
wholly  inadequate  to  one  which  involved  the  loss  of  the  whole 
contract.  Where  an  agreement  contains  several  stipulations 
differing  in  importance,  and  a  sum  is  mentioned  as  liquidated 
damages  to  be  paid  in  case  of  a  breach ;  and  of  such  amount  as 
is  apparently  appropriate  to  a  total  breach,  it  will  be  regarded 
as  intended  to  fix  the  damages  only  for  such  a  breach ;  and  an 
intention  will  not  be  imputed  to  make  it  payable  for  breach  of 
minor  and  unimportant  parts,  in  the  absence  of  language  very 
clearly  expressing  it.^  If,  however,  it  cannot  be  appropriated  thus 
to  a  total  breach,  but  applies,  by  necessary  construction,  to  such 
as  would  cause  trifling  loss  or  inconvenience,  as  Vfell  as  to  those 
of  great  importance,  such  sum  is  a  penalty. 

Parke,  B.,  said :  "  The  rule  laid  down  in  Kemble  v.  Farren 
was,  that  when  an  agreement  contained  several  stipulations  of 
various  degrees  of  importance  and  value,  the  sum  agreed  to  be 
paid  by  way  of  damages  for  breach  of  any  of  them  shall  be  con- 
strued as  a  penalty,  and  not  as  hquidated  damages,  even  though 
the  parties  have  in  express  terms  stated  the  contrary.     .     .     . 

1  Streeper  v.  Williams,  48  Pa.  St.         2  Hoagland  v.  Segur,  38  N.  J.  L. 
450:  Shreve  v.  Breveton,  51  Pa.  St.      230. 
175;  Robeson  v.  "Whitcsides,  16  S.  & 
R.  3i30. 


522  CONYE^"TIOK■AL    LIQUIDATIONS    AND   DISCHAEGES. 

When  the  parties  say  that  the  same  ascertained  sum  shall  be 
paid  for  the  breach  of  any  article  of  the  agreement,  however 
minute  or  unimportant,  they  must  be  considered  as  not  meaning 
exactly  what  they  say ;  and  a  contrary  intention  may  be  col- 
lected from  the  other  parts  of  the  agreement."  ^  But  in  a  later 
case,-  he  is  reported  to  have  said  of  the  same  case :  "  That  de- 
cision has  since  been  acted  upon  in  several  cases,  and  I  do  not 
mean  to  dispute  its  authority.  Therefore,  if  a  party  agree  to 
pay  1,000^.  on  several  events,  all  of  which  are  capable  of  ac- 
curate valuation,  the  sum  must  be  construed  as  a  penalty  and 
not  as  liquidated  damages.  But  if  there  be  a  contract  consist- 
ing of  one  or  more  stipulations,  the  breach  of  which  cannot  bo 
measured,  then  the  parties  must  be  taken  to  have  meant  that 
the  sum  agreed  on  was  liquidated  damages  and  not  a  penalty." 
And  the  same  antithesis  is  stated  by  him  in  another  case,  in 
which  he  said :  "  "Where  a  deed  contains  several  stipulations  of 
various  degrees  of  unportance,  as  to  some  of  which  the  dam- 
ages might  be  considered  liquidated,  whilst  for  others  they 
might  be  deemed  unliquidated,  and  a  sum  of  monev  is  made 
payable  on  a  breach  of  any  of  them,  the  courts  have  lield  it  to 
]3e  a  penalty  onh'^,  and  not  liquidated  damages.  But  when  the 
damages  are  altogether  uncertain,  and  yet  a  definite  smn  of 
money  is  expressly  made  payable  in  respect  to  it  by  way  of 
liquidated  damages,  those  words  must  be  read  in  the  ordinary 
sense,  and  cannot  be  construed  to  import  a  penalty."^  This 
latter  distinction  has  been  recognized  and  followed  in  other 
cases  in  England  and  in  America."* 

1  Horner  v.  Fliutoff,  9  M.  &  W.      performance  of    any  or    either,    it 
678.  must  be  a  penalty,  and  not  liqui- 

2  Atkins  V,  Kennier,  4  Exch.  776.      dated  damages.     This  doctrine,    in 
3 Green  v.  Price,  13  M.  &  W.  695;      the  cases  in  which  it  is  asserted,  is 

affirmed  in  16  M.  &  W.  346.  traced  to  the  cases  of  Astley  v.  Wel- 

*  Carpenter    v.   Lockliart,    1    Ind.  den,  3  Bos.  &  Pul.  346,  and  Kemble 

434.     Cotheal  v.   Tahnage,  9  N.  Y.  v.  Farren,  6  Bing.    141.     But  I  do 

551,  was  decided  on  this  distinction,  not  understand  either  of  these  cases 

Euggles,  J.,  said:     "  It  is  contended  as  establishiniSf  any  such  rule.     The 

that  because  the  contract  referred  principle  to  be  deduced  from  them 

to  in  the  bond  bound  tlie  defendant  is,  that  where  a  party  agrees  to  do 

to  do  several  things  of  different  de-  several  things,  one  of  which  is  to 

grees  of  importance,  and  the  sum  of  pay  a  sum  of  vioney,  and  in  case  of 

was  made  pa}'able  for  the  non-  a  failure  to  perfijrm  any  or  either  of 


STrPULATED   DAilAGES. 


623 


Whether  the  damages  are  certain  or  not,  a  fixed  sum  made 
payable  on  the  happening  of  one  or  of  several  events,  each  of 
which  will  be  the  occasion  of  some  loss,  cannot  be  deemed  a 
sum  intended  for  compensation.  ISTo  such  stipulation  can  oper- 
ate on  that  principle.  In  many  courts  the  law  is  held  to  be 
that  a  sum  is  stipulated  damages  when  it  conclusively  appears 
that  the  parties  have  intentionally  adopted  it  for  that  purpose. 
But  where  the  courts  proceed  on  the  theory  that  there  can  l>e 
no  such  intention  when  the  stipulation  is  so  framed  that  it  can- 
not by  an  V  possibility  operate  to  adjust  the  recompense  to  actual 
injury,  a  sum  made  payable  indifferently  for  one  breach  or  for 
many,  for  a  breach  attending  with  a  small  loss  or  a  large  one, 
can  have  no  eifect  to  hquidate  damages.  In  case  the  damages 
are  easily  computed,  the  extent  of  the  inequality  of  the  pro- 
vision is  seen  at  once ;   but  even  if  they  are  uncertain,  the  in- 


the  stipulations,  agrees  to  pay  a 
larger  svmi  as  liquidated  damages, 
the  larger  sum  is  to  bo  regarded  in 
the  nature  of  a  penalty;  and  being 
a  penalty  in  regard  to  one  of  the 
stipulations  to  be  performed,  is  a 
penalty  as  to  all.  In  Kemble  v. 
Farren,  Tindall,  C.  J.,  says,  that  if 
the  clause  fixing  the  sum  for  liqui- 
dated damages  '  had  been  limited  to 
breaches  which  were  of  uncertain 
nature  and  amount,  we  should  have 
thought  it  would  have  the  effect  of 
ascertaining  the  damages  upon  any 
such  breach;'  thus  rejecting  the 
doctrine  contended  for  by  the  de- 
fendant's counsel  in  the  present 
case.  It  is  true  that  the  doctrine 
thus  contended  for  has  been  adopt- 
ed in  some  English  and  in  several 
American  cases;  hastily,  I  should 
think,  and  without  careful  examina- 
tion of  the  cases  from  which  it  is 
supposed  to  be  derived.  But  if  it 
should  be  considered  as  having  any 
soUd  foundation  in  princij)le,  it 
should  be  applied  only  in  subordina- 
tion to  the  general  rule,  which  re- 
(^uires  the  courts  in  these,  as  in  all 
other  cases,  to  carry  into  effect  the 


true  intent  of  the  parties.  It  should 
never  be  appUed  to  cases  like  the 
present,  where  the  amount  of  dam- 
ages is  uncertain  from  the  nature  of 
the  subject  itself;  and  incapable  of 
proof,  not  only  from  that  uncer- 
tainty, but  from  the  circumstances 
ah-eady  stated;  and  wiiere,  for 
these  reasons,  there  was  a  necessity 
for  ascertaining  them  by  estimate 
by  the  parties  in  their  contract. 
The  only  plausible  ground  for  with- 
holding the  doctrine  in  any  case  is, 
that  the  party  might  be  made  re- 
sponsible for  the  whole  amount  of 
damages  for  the  breach  of  an  unim- 
portant part  of  his  contract,  and  so 
be  made  to  pay  a  sum  by  way  of 
damages  grossly  disproportionate  to 
the  injury  sustained  by  the  other 
I)arty.  Without  undertaking  to  deny 
that  this  rule  may  properly  be  ap- 
pUed to  some  cases,  I  cannot  tliink 
it  ought  to  be  applied  to  tlie  present. 
The  injustice  it  professes  to  avoid  is 
no  greater  than  that  which  is  toler- 
ated in  many  other  cases  for  the 
purpose  of  enforcing  a  faithftd  per- 
formance of  contracts."  Bagley  v. 
Peddie,  16  N.  Y.  469. 


52-1  CONVENTIONAL   LIQUIDATIONS    AND   DISCHARGES. 

equality  is  logically  certain.  Evan,  C.  J.,  stated  the  point  with 
great  clearness.  He  says:  "Where  the  sum  is  agreed  to  be 
paid  for  any  of  several  breaches  of  the  contract,  and  the  dam- 
ao-es  resulting:  from  the  breach  of  aU  of  them  are  uncertain,  and 
there  is  no  fixed  rule  for  measuring  them,  but  the  breaches  are 
apparently  of  various  degrees  of  importance  and  injury,  the 
cases  are  conflicting  on  the  rule,  whether  the  sum  should  be 
held  as  a  penalty  or  as  liquidated  damages.  On  principle,  we 
are  very  clear  that  in  such  a  case  the  smn  should  be  held  as  a 
penalty.  I  or  it  appears  to  us  that  it  would  be  as  unjust  to 
sanction  a  recovery  of  the  sum  agreed  to  be  paid  alike  for  one 
trivial  breacli,  or  for  one  important  breach,  or  for  breach  of  the 
whole  contract,  as  it  would  be  to  sanction  such  a  recovery 
equally  for  damages  certain  and  uncertain  in  their  nature.  The 
rule  holding  the  sum  to  be  a  penalty  in  the  latter  case,  goes 
upon  the  injustice  of  allowing  such  a  recovery  equally  in  cases  of 
damages,  uncertain  indeed,  but  manifestly  and  materially  differ- 
ent in  amount ;  equally  for  breach  of  part  of  the  contract,  and 
for  breach  of  the  entu'e  contract.  Such  a  rule  would  not 
only  put  the  same  value  on  a  small  part  as  on  a  large  part,  but 
would  put  the  same  value  on  any  part  as  on  the  whole."  ^ 
This  is  believed  now  to  be  the  doctrine  generally  held ;  if  a 

1  Lyman  v.  Babcock,  40  Wis.  503.  the  contract.  But  such  would  be 
1  Parsons  on  Cont.  161,  where  the  effect,  if  the  words  of  the  parties 
the  learned  author  says:  "Let  us  lore vailed  over  the  justice  of  the 
suppose  a  contract  between  parties,  case.  The  sum  to  be  paid  would, 
one  of  whom,  for  good  consideration,  therefore,  be  treated  as  penalty,  and 
promises  to  the  other  to  do  several  reduced  accordingly,  unless  the 
things,  and  then  it  is  agreed  that  the  agreement  jprovided  that  it  should 
j)romisor  shall  pay,  by  way  of  liqui-  be  paid  only  when  the  whole  con- 
dated  damages,  a  large  sum,  if  the  tract  was  broken,  or  so  much  of  it  as 
promisee  recover  against  him  in  an  to  leave  the  remainder  of  no  value; 
action  for  a  breach  of  this  contract,  or  unless  the  sum  agreed  upon  was 
It  must  be  supposed  that  this  sum  is  broken  up  into  parts,  and  to  each 
intended  and  regarded  as  adequate  breach  of  the  contract  its  appropri- 
compeusation  for  the  breach  of  the  ate  part  assigned;  and  the  sum  or 
whole  contract;  for  it  is  aU  that  the  sums  payable  came  in  other  respects 
promisor  is  to  pay  if  he  breaks  the  within  the  piluciples  of  liquidated 
whole.  It  would,  of  course,  be  most  damages."  Astley  v.  Welden,  3  B. 
unjust  and  oppressive  to  require  him  &  P.  346,  per  Heath,  J.;  Boys  v. 
to  pay  this  wliole  sum  for  violating  Ancel,  5  Bing.  N.  C.  390;  Reilly  v. 
any  one  of  the  least  important  of  Jones,  1  Bing.  303. 


STIl'ULATED    DAiLiGES. 


m 


gross  sum  is  stiivalated  to  be  paid  for  any  failui-e  to  fulfil  an 
agreement  consisting  of  several  parts  and  requiring  several 
things  to  be  done  or  omitted,  it  is  a  penalty.^ 

There  is  one  class  of  contracts  in  which  the  general  construc- 
tion of  stipulations  liquidating  damages  may  at  first  sight  seem 
to  be  in  conflict  with  this  doctrine:  contracts  of  a  neirative 
character,  requiring  a  party  to  abstain  continuously  from  doing 
certain  acts,  as  in  contracts  to  discontinue  a  nuisance,^  or  con- 
tracts to  secure  enjoyment  of  the  good  will  in  a  certain  trade  or 
lousiness.  A  contract  of  the  latter  description  contains  a  guar- 
anty against  competition  from  the  promisor  for  a  certain  time 
and  at  a  specified  place,  or  in  some  hmited  district.  He  agrees 
not  to  engage  in  that  business  for  such  time  within  that  space, 
and  if  he  does,  or  if  he  violates  the  contract,  or  fails  to  fulfil  it, 
he  will  pay  a  certain  sum.  In  general,  a  single  violation, 
though  it  be  accomplished  in  one  day,  and  is  confined  to  a 


iTayloe  v.  Sandiford,  7  Wheat.  13; 
Van  Buren  v.  Digges,  11  How,  U.  S. 
461;  Carpenter  v.  Lockliart,  1  Ind. 
434;  Cook  v.  Finch,  19  Minn.  407; 
Lee  V.  Overstreet,  44  Ga.  507;  Owen 
V.  Hodges,  1  McMull.  (S.  C.)  106; 
Hammer  v.  Bradenbush,  31  Mo.  49; 
Goklsborough  v.  Baker,  3  Cranch 
C.  C.  48;  Nash  v.  HermosiUa,  9  Cal. 
584;  Foley  v.  McKeegan,  4  Iowa,  1; 
Martin  v.  Taylor,  1  Wash.  C.  C.  1; 
Henderson  t.  Causler,  65  N.  C.  542; 
Lord  V,  Gaddis,  9  Iowa,  265;  Halleck 
V.  Slater,  9  Iowa,  599;  Brown  v. 
Bellows,  4  Pick.  178;  Moore  v.  Platte 
Co.  8  Mo.  467;  Jackson  v.  Baker,  3 
Edw.  Ch.  471;  Thoroughgood  v. 
Walker,  2  Jones'  L.  15;  Curry  v. 
Larer,  7  Pa.  St.  470;  Fitzpatrick  v. 
Cottingliam,  14  Wis.  219;  Trowler  v. 
Elder,  77  lU.  452;  Hoagland  v.  Se- 
gur,  38  N.  J.  230;  Long  v.  Towl,  43 
:\Io.  39;  Goweu  v.  Saltmarsh,  11  Mo. 
271;  Watts  v.  Sheppard,  2  Ala.  425: 
Cheddeck  v.  Marsh,  21  N.  J.  463; 
Niver  V.  Eassman,  18  Barb.  50;  Berry 
V.  Wisdom,  3  Oliio  St.  241;  Clement 
V.  Cash,  21  N.  Y.  253;  Cliase  v.  Allen, 


13  Gray,  42;  My  res  v.  Hayes,  3  Miss. 
93;  Trustees  v.  Walrath,  27  Mich. 
232;  Elizabethtown,  etc.  R.  R.  Co.  v. 
Georgenehsee,  9  Bush,  56 ;  Dailey 
V.  Litchfield,  10  Mich.  29;  Staples  v. 
Parker,  41  Barb.  648;  Magee  v. 
Lavel,  L.  R.  9  C.  P.  107;  Shute  v. 
Taylor,  5  Met.  61;  Beckman  v.  Drake, 
9  M.  &  W.  846;  Hoag  v.  McGinnis, 
22  Wend.  163;  Higgins  v.  Weld,  14 
Gray,  165;  Lea  v.  Whitaker,  L.  R.  8 
C.  P.  70;  In  re  Newman;  Ex  parte 
Copper,  4  Ch.  D.  724. 

In  some  of  the  foregoing  cases 
the  rule  is  quoted  as  apphcable  to 
agreements  for  performance  or 
omission  of  various  acts,  in  I'espect 
to  one  or  more  of  which  the  dam- 
ages on  a  breach  would  be  readily 
ascertainable,  because  the  particular 
case  embraced  such  stipulations;  but 
without  any  expression  to  indicate 
that  the  determination  would  have 
been  different  if  all  the  damages 
had  been  of  an  uncertain  nature. 

2  G  rasselli  v.  Lo wden,  1 1  Ohio  St. 
349;  not  to  poach,  Roy  v.  Duke  of 
Beaufort,  2  Atk,  190. 


526 


CONYENTIONAL   LIQinDATIONS   AITD   DISCHAKGES. 


small  part  of  the  district,  subjects  him  to  Hability  for  the  stated 
smn,  and  a  repetition  of  such  acts,  or  a  failure  to  abstain  at  all, 
may  subject  him  to  no  greater  liability.  Such  agreements  are 
in  general  such  as  to  requu'e  one  continuous  act  of  abstention, 
and  the  consideration  and  the  amount  required  to  be  paid  evince 
the  intention  that  such  stipulated  sum  be  paid  for  a  minimum 
of  violation.  The  agreement  may  be  so  framed  that  there  may 
be  repeated  recoveries  for  successive  infractions,  or  it  may  be 
framed  so  that  only  one  infraction  is  possible.^ 


1  Dakin  v.  Williams,  19  Wend.  447; 
Dunlop  V.  Gregory.  10  N.  Y.  241; 
Mott  V.  Mott,  11  Barb.  137;  Streeter 
V.  Rush,  28  Cal.  67;  Duffey  v. 
Shockey,  11  Ind.  70;  Spicer v..Hoop, 
51  Ind.  3G5;  Jaquitli  v.  Hudson,  5 
Mich.  123;  Mercer  v.  Irving,  E.  B.  & 
E.  563;  Reynolds  v.  Bridge,  6  El.  & 
B.  528;  Sainter  v.  Ferguson,  7  M.  G. 
&  S.  710:  Muse  v.  Swayne,  3  Lea 
(Tenn.),  256;  Galeswortliy  v.  Strutt, 
1  Ex.  650;  Rawlinson  v  Clark,  14 
M.  &  W.  187.  See  Leary  v.  Lafliu, 
101  Mass,  334.  Under  a  statute  of 
New  York,  a  contract  was  author- 
ized to  be  made  with  certain  officers 
for  the  publication  of  the  reports  of 
the  decisions  of  the  court  of  ap- 
peals. The  officers  were  given  power 
to  impose  terms  on  the  contracting 
publisher  beneficial  to  the  public, 
and  to  make  provision  in  the  con- 
ti'act  that  a  party  injured  by  the  re- 
fusal of  the  contractor  to  sell  and 
deliver  as  prescribed  in  the  contract 
should  he  entitled  to  recover  dam- 
ages, and  might  fix  a  sum  as  liqui- 
dated damages. 

A  contract  so  entered  into  required 
the  contractor  to  furnish,  at  the  con- 
tract price,  any  volume  published 
under  it.  to  any  other  law-bookseller 
in  the  city  of  New  York  or  Albany 
applying  therefor,  "in  quantities 
not  exceeding  one  hundred  copies  to 
each  applicant;"  unless  the  con- 
tractor clioose  to  deliver  more.    The 


contract  also  jirovided  that  for  any 
failure  on  the  part  of  the  contractor 
"to  keep  on  sale,  furnish  and  de- 
liver the  volumes,  or  any  of  them, 
as  agreed,  he  shall  forfeit  and 
pay  .  .  .  the  sum  of  $100, 
hereby  fixed  and  agreed  upon,  not 
as  penalty,  but  as  liquidated  dam- 
ages," to  be  sued  for  and  recovered 
by  the  persons  aggrieved. 

The  plaintiff,  a  book-seller,  ap- 
plied on  six  different  occasions  for 
a  number  of  copies  required  by  him 
in  his  business,  of  certain  volumes 
published  under  the  contract,  ten- 
dering the  contract  price,  which 
defendant  refused  to  deliver. 

In  ah.  action  on  the  contract,  it 
was  held  a  valid  stipulation  of  dam- 
ages, not  a  penaltj^;  and  that  the 
plaintiff  was  entitled  to  recover  the 
damages  for  each  refusal. 

Miller,  J.,  delivering  the  opinion  of 
the  court,  treats  the  question  as  one 
depending  on  the  intention  of  the 
parties,  ascertained  from  the  lan- 
guage of  the  contract,  and  from  the 
nature  of  the  surrounding  circum- 
stances of  the  case. 

Referring  to  the  case,  he  says: 
"  The  breach  provided  for  was  a 
single  one  —  a  failure  to  keep  on 
sale,  furnish  and  deliver  the  volumes 
named  at  a  price  fixed.  The  agree- 
ment expressly  provides  that  the 
sum  named  is  fixed  and  agreed  upon 
'  not  as  a  penalty.'    The  failure  to 


STIPULATED   D^iZMAGES. 


52' 


TVTiere  the  stated  sum  obviously  and  grossly  exceeds  any  just 
measure  of  compensation,  there  is  the  same  recognized  discretion 
in  such  cases  as  in  others,  to  declare  such  sum  a  penalty.^ 


sell  and  deliver  embraced  not  only  a 
single  volume,  but  might  be  one 
hundred  volumes  at  one  time.  The 
damages  for  a  failure  to  deliver  a 
singie  volume  might  be  very  small, 
while  for  a  larger  :.' umber  it  would 
be  far  gi-eater:  and,  in  case  of  a 
book-seller,  disposing  of  them  in  the 
course  of  his  trade,  might  be  beyond 
the  amount  actually  fixed.  The 
damages  for  a  single  breach  were 
also  uncertain,  and  could  not  be 
determined  without  extrinsic  evi- 
dence, and  without  some  embarrass- 
ment. The  mere  loss  of  profits  on 
a  volume  to  a  book-seller  might  also 
be  of  but  trifling  amount  when  com- 
pared with  the  injury  to  his  trade 
by  being  unable  to  furnish  to  his 
customers  volumes  of  the  reports  as 
required.  Under  the  circumstances, 
it  is  easy  to  see  that  there  would  be 
considerable  dilBculty  in  making 
proof  of  the  actual  damages  in- 
cuiTed.  In  view  of  the  facts,  al- 
though the  question  is  by  no  means 
free  from  emliaiTassment,  it  is,  per- 
haps, a  fair  inference  that  the  par- 
ties actually  intended  to  guard 
against  tliese  difficulties  by  fixing 
the  amount  named  in  the  contract 
as  liquidated  damages.  As  the  dam- 
ages which  might  possibly  be  m- 
curred  by  a  failure  to  supply  a  larger 
number  of  copies  provided  for  by 
the  contract  might  be  greater,  we 
think  the  amount  was  not  unreason- 
able, or  grossly  disproportionate  to 
the  probable  estimate  of  actual  dam- 
ages." Little  V.  Banks,  85  X.  Y.  258. 
1  Stevens  v.  Barrett,  1  Pick.  443. 
In  Perkins  v.  Lyman,  9  Mass.  532, 
S.  C.  11  Mass.  76,  the  defendant  cov- 
enanted for  a  valuable  consideration, 
that  he  would  not  be  directly  or  in- 


directly interested  in  any  voyage  to 
the  N.  W.  coast  of  America,  or  in 
any  traffic  with  the  natives  of  that 
coast  for  seven  years,  in  the  penal 
sum  of  $8,000.  It  was  held  a  viola- 
tion of  such  covenant  to  own  and  fit 
a  vessel  for  such  voyage,  althougli 
before  her  departure,  the  covenantor 
divested  himself  of  aU  interest  in 
the  vessel  and  cargo;  but  also  held 
that  the  §8,000  was  penalty.  Per 
curiam:  "The  question  whether  a 
sum  of  money,  mentioned  in  an 
agreement,  shaU  be  considered  as  a 
penalty,  and  so  subject  to  the  chan- 
cery powers  of  tliis  court,  or  as  dam- 
ages liquidated  by  the  parties,  is 
always  a  question  of  constniction,  on 
which,  as  in  other  cases  where  a 
question  of  the  meaning  of  the  par- 
ties in  a  contract,  provable  in  a  writ- 
ten instrument,  arises,  the  court  may 
take  some  aid  to  themselves  from 
circumstances  extraneous  to  the 
writing.  In  order  to  determine  upon 
the  words  used,  there  may  be  an  in- 
quiiy  into  the  subject  matter  of  the 
contract,  the  situation  of  the  parties, 
the  usages  to  which  they  may  be  un- 
derstood to  refer,  as  well  as  to  other 
facts  and  circumstances  of  their 
conduct;  although  their  words  are  to 
be  taken  as  proved  by  the  writing 
exclusively."  The  court  considered 
there  was  nothing  in  the  transaction 
and  subject  matter  to  indicatf- 
whether  the  sum  stated  was  penalty 
or  liquidated  damages.  It  might  br- 
either  consistently  with  the  object 
of  the  contract.  But  the  court  say: 
"If  the  sum  of  $8,000,  mentioned  in 
the  agreement,  is  to  be  treated  as 
liquidated  damages,  then  for  one  in- 
stance, in  which  the  contract  should 
be  broken,  and  for  a  thousand  in 


528 


CONVENTIONAL   LIQUIDATIONS   AND   DISCIIAEGES. 


Effect  of  paet  pekformance  accepted  where  damages  liq- 
uidated.—  For  the  same  reason  that  one  sum  cannot  consist- 
ently be  compensation  alike  for  a  total  and  partial  breach,  a 
stated  sum  made  payable  for  the  former  cannot  by  construction 
be  applied  to  any  infraction  after  acceptance  of  part  perform- 
ance.^ In  case  of  such  a  stipulation,  the  stated  sum  is  only  re- 
coverable upon  the  happening  of  the  very  event  mentioned  in 
the  contract.  If  a  partial  breach  occurs,  it  has  sometimes  l^een 
said  the  stated  sum  is  as  to  that  breach  only  penalty,  and  dam- 
ages are  given  on  proof  without  regard  to  it.^  In  other  in- 
stances, it  has  been  held  that  the  damages  for  a  partial  breach 
are  a  constituent  of  the  sum  stipulated  for  an  entire  failure  to 
perform.  Thus,  where  there  were  hquidated  damages  for  a 
failure  to  convey  land,  and  a  part  only  of  the  land  wiis  conveyed, 
and  a  failure  as  to  the  residue,  the  damages  allowed  was  a  sum 
which  bore  the  same  ratio  to  the  stipulated  sum  that  the  value 
of  the  land  not  conveyed  bore  to  that  of  the  whole  land.^ 


which  the  defendant  should  inter- 
fere in  the  trade  contemplated  by 
the  parties  to  be  secured  to  the 
plaintiffs  for  seven  years,  exclusively 
of  him,  and  of  all  acting  under  him, 
the  same  damages,  the  amount  of 
demand,  would  be  recovered,  and 
having  been  once  paid,  if  demanded 
as  a  penalty,  there  would  be  an  end 
of  the  contract;  but  if  demanded  as 
damages,  then,  it  seems,  the  demand 
might  be  repeated.  Examined  in 
this  view,  we  see  nothing  which 
gives  this  contract  any  other  deter- 
minate meaning  than  that  of  pen- 
alty. If  there  is  nothing  to  prevent 
the  plaintiffs,  in  case  the  defendant 
should  have  injured  them,  in  the 
breach  of  his  contract,  to  a  greater 
amount  than  $8,000,  from  recover- 
ing uxjon  his  covenant,  and  in  that 
form  of  action,  the  extent  of  the 
damage  actually  sustained,  although 
greatly  exceeding  the  sum  men- 
tioned; it  would  be  a  severe  con- 
struction, indeed,  which  should  con- 
sider   him    liable  to    that    amount 


upon  one  breach,  however  slight  the 
injury  and  loss  may  have  been.  .  .  . 
He  binds  himself  in  the  sum  of 
$8,000  for  his  faithfully  and  strictly 
adhering  to  this  contract.  It  is  not 
said,  if  he  does  so,  contrary  to  his 
agreement,  then  he  w^ill  pay  that 
sum  as  a  satisfaction.  Nor  is  there 
anything  expressed  which  would 
conclude  the  plaintiffs,  unless  it  be 
their  form  of  action  (debt),  when  the 
amount  of  damages  should  exceed 
$8,000,  from  demanding  to  the  ex- 
tent of  their  loss." 

iHoagland  v.  Segur,  38  N.  J.  230; 
Shute  V.  Taylor,  5  Met.  61;  Taylor 
V.  The  Marcella,  1  Wood,  302; 
Watts  V.  Sheppard,  2  Ala.  425; 
Berry  v.  Wisdom,  3  Ohio  St.  241; 
Lampman  v.  Cochran,  16  N.  Y.  275, 
per  Shankland,  J. ;  Shiel  v.  McNitt, 
9  Paige,  101;  JVZ^ndy  v.  Culver,  18 
Barb.  836. 

-  Shute  V.  Taylor,  supra. 

3  Watts  V.  Sheppard,  2  Ala.  425. 
See  Chase  v.  Allen,  13  Gray,  42. 


STIPULATED    DAMAGES. 


529 


LlQODATED    DAMAGES    ARE    IN    LIEU    OF     PERF0EMA2\CE. It     liaS 

been  held  tliat  in  all  cases  where  a  party  relies  on  the  payment 
of  liquidated  damages,  it  must  clearly  appear  from  the  con- 
tract that  they  are  to  be  paid  and  received  in  lieu  of  perform- 
ance.^ Where  the  stipulated  sum  covers  the  loss  of  the  vv^hole 
contract,  and  does  not  apply  where  there  is  merely  a  violation 
of  some  detail  of  it,  they  are  in  lieu  of  performance  of  the 
entire  contract ;  they  satisfy  the  whole  of  it  and  every  particu- 
lar of  it.  Thus,  if  in  an  agreement  for  submission  of  a  contro- 
versy to  arbitration,  it  is  mutually  agreed  that  either  party 
failing  to  fulfil  such  agreement  shall  pay  to  the  other  a  speci- 
fied sum,  as  stated  damages,  not  so  large  in  itself  as  to  im- 
ply a  penalty,  it  would  be  recoverable  from  the  party  who 
should  revoke  the  power  of  the  arbitrators,  for  he  would 
thereby  repudiate  the  submission,  and  defeat  the  entire  object 
of  the  agreement.  But  if  there  be  no  revocation,  and  after  an 
award  is  made,  one  party  refuses  to  perform  it,  such  refusal  is 
not  such  a  breach  as  the  stated  sum  applies  to.^    But  if  the 


1  Gray  v.  Crowley,  18  John.  219. 

2  Id.  In  Lowe  v.  Nottle,  16  111. 
475,  an  action  was  brought  on  an 
award.  The  submission  stated  that 
several  suits  were  pending  between 
the  parties,  arising  out  of  a  contract 
in  relation  to  the  purchase  of  gram; 
and  it  was  agreed  that  aU  matters 
connected  with  the  contract  and  the 
suits  were  to  be  referred;  that  the 
decision  be  conclusive,  and  that 
judgment,  on  ten  days*  notice, 
should  be  entered  on  the  award.  It 
was  also  provided  that  the  sub- 
mission should  not  operate  to  dis- 
miss any  of  the  pending  suits,  until 
final  judgment  on  the  award,  or  the 
performance  of  it;  the  parties  bind- 
ing themselves  to  abide  by  the 
award,  "in  the  penalty  of  one 
thousand  dollars  as  stipulated  dam- 
ages, to  be  paid  by  the  party  delin- 
quent to  the  party  complying."  The 
award  was  for  $5,876.46.  Scates, 
C.  J.  (speaking  of  causes  of  demurrer 
to  the  declaration),  said:  "The  most 

Vol.  1  —  34 


important  is  the  want  of  an  aver- 
ment of  a  failure  to  pay  the  liqui- 
dated damages,  stipulated  to  be 
$1,000,  for  non-compliance  with  the 
award,  and  which  it  is  hei'e  con- 
tended is  aU  that  can  be  recovered 
under  the  submission  and  award.  If 
this  view  is  sustainable,  no  action 
Avill  lie  upon  the  award,  as  it  is  here 
brought,  but  alone  upon  the  sub- 
mission. To  solve  this  objection,  it 
is  necessary  to  ascertain,  from  the 
nature  of  the  matters  in  contro- 
versy, and  the  terms  and  language 
of  the  parties  in  their  submission, 
whether  they  intended  by  this  part 
of  the  agreement  that  the  .$1,000 
fixed  as  liquidated  damages  should 
be  strictly  and  technically  so  held, 
or  only  as  a  penalty.  Courts  have 
not  been  confined  and  controlled 
alone  by  the  literal  terms,  stii^ulated 
damages,  used  by  the  parties,  when 
inquiring  into  their  true  intention 
and  meaning.  But  they  have  looked 
to  the  subject  matter  of  the  dispute, 


'jZO 


CO^-VEXTIONAL    LIQUIDATIONS    AND    DISCHAEGES. 


stated  Slim  is  made  payable  as  liquidated  damages  for  a  breach 
of  some  particular  only  of  the  agreement,  then  it  may  still  be 
a  question  whether  that  feature  of  the  contract  will,  notwith- 
standing the  breach,  and  the  claim  or  even  payment  of  those 
damages,  be  of  continuing  obhgation,  so  as  to  admit  of  other 
breaches  and  successive  claims  and  recoveries  of  the  same  stip- 
ulated damages.  This  question  is  not  to  be  settled  by  any  rule 
peculiar  to  the  construction  of  such  stipulations ;  it  depends  on 
the  intention  of  the  parties  as  asbertaiiied  by  a  fair  interpreta- 
tion of  the  contract.  Where  certain  work  is  required  to  be 
done  within  a  specified  time,  it  may  be,  and  often  is,  agreed 
that  a  stated  sum  shall  be  paid  for  every  week,  month  or  other 
period,  during  which  completion  of  the  work  is  delayed  beyond 
the  appointed  time.  In  such  cases  there  is,  by  necessary  impH- 
cation,  a  continuing  obligation  as  well  as  right  to  finish  the 
work,  though  the  stipulated  time  of  performance  has  elapsed. 
These  sums  are  recoverable  and  may  be  aggregated.*  And  they 
are  severally  payable  only  as  complete  satisfaction  for  the  delay 
of  performance  and  not  in  lieu  of  performance. 


the  situation  and  condition  of  the 
parties,  and  all  the  circumstances,  to- 
gether with  the  effects  and  con- 
Bequences,  as  aids  in  arriving  at  the 
true  meaning.  "Where  a  covenant  is 
made  concerning  an  existing  cause 
of  action,  that  cause  may  or  may 
not  be  merged  in  the  covenant.  If 
it  be  merged,  and  the  covenant  be 
broken,  the  party  is  liable  alone  on 
the  covenant,  and  not  on  the  original 
cause  of  action.  If  is  not  merged, 
then  the  covenant  affords  a  new  and 
additional  cause  Of  action,  and 
remedy  upon  it.  In  this  latter  case, 
if  the  amount  named  in  the  cove- 
nant or  agreement  be  fixed  as  liqvii- 
dated  or  stipulated  damages,  and  is 


intended  by  the  parties  to  be  paid  in 
lieu  of  performance,  then  the  re- 
covery will  be  confined  to  that 
amount  for  the  breach,  as  well  as  to 
his  action  on  the  covenant  or  agree- 
ment for  his  remedy,  and  cannot 
preserve  his  original  cause  of  action. 
But  when  such  intention  does  not 
appear,  the  sum  named  as  stipulated 
or  liquidated  damages  will  be  re- 
ceived and  treated  as  a  penalty.  And 
the  party  may  recover  upon  the 
original  cause." 

1  Fletcher  v.  Dyche,  2  T.  R.  32; 
Pettis  V.  Bloomer,  21  How.  Pr.  31; 
HaU  V.  Crowley,  5  Allen,  304.  See 
ante,  p.  508. 


DfTEREST.  531 


CHAPTER  YIII. 

INTEREST. 


Interest  as  an  element  of  damage  has  already  been  several 
times  mentioned.  But  as  such  and  otlierwise  it  is  an  elementary 
topic  deserving  more  particular  treatment,  and  this  seems  the 
most  appropriate  place  to  introduce  it. 

Defixttions  and  general  view  of  the  subject. —  Interest 
is  the  compensation  fixed  by  agreement  or  allowed  by  law  for 
the  use  or  detention  of  moneys ;  or  for  the  loss  thereof  to  the 
party,  entitled  to  such  use ;  and  is  computed  at  a  certain  rate  per 
centum  by  the  year,  unless  stipulated  for  upon  some  other 
period  of  time. 

In  a  strict  sense,  it  is  the  compensation  fixed  by  agreement 
to  be  paid  for  the  use  of  money,  while  the  debtor  has  a  right  to 
retain  the  principal,  and  during  a  stipulated  period  of  credit ;  in 
other  words,  before  the  principal  is  due  and  payable.  A  cred- 
itor is  not  entitled  to  be  paid  for  the  use  of  money  owing  to  him 
before  it  is  due,  unless  by  force  of  some  agreement,  express  or 
imphed.^  And  this  should  be  for  the  prospective  use  of  money ; 
otherwise  it  has  been  held  not  to  be  strictly  interest.^  But  the 
past  use  of  money  may  be  a  vaHd  consideration  for  a  promise  to 
pay  money  by  way  of  compensation.^  When  expressly  stipu- 
lated for  to  accrue  during  the  period  of  forbearance,  it  becomes 


iMinard  v.  Beans,  64  Pa.  St.  411 
Thorndike  v.  U.  S.  3  Mason,  1 
Beardslee  v.  Horton,  3  Mich.  560 
Robinson  v.   Bland,    2    Burr.    1077 


the  time  for  which  it  was  computed 
had  elapsed,  and  at  a  rate  in  excess  of 
that  antecedently  agreed  upon,  and 
specified    in  the    contract    for    the 


Rensselaer  Glass  F.  Co.  v.  Reid,  5  principal.  The  court  say:  "  A  con- 
Cow.  587;  Robinson's  Adm.  v.  Brock,  tract  to  pay  interest  is  a  contract  to 

1  Hen.  &  Munf.  211;  White  v.  pay  a  consideration  for  the  future 
Walker,  31  111.  422;  Pollard  v.  Yoder,  use  of  money.     The  contract  in  this 

2  A.  K.  Marsh.  264;  Brainard  v.  case  was  a  contract  to  pay  a  con- 
Champlain  Transportation  Co.  29  sideration  for  the  jMst  use  of  money, 
Vt.  154;  Evans  v.  Beckwith,  37  Vt.  and,  therefore,  not  a  contract  to  pay 
285.  interest  in  any  proper  or  legal  sense." 

2  Daniels  v.  Nelson,  21  Minn.  530.  Adams  v.  Hastings,  6  Cal.  126. 

The  action  was  on  a  note  given  for  a  ^  wUcox  v.  Howland,  23  Pick.  167. 
sum  agreed  upon  for  interest  after 


532 


INTEREST. 


as  it  accrues,  a  positive  addition  to  the  principal,  and  is  thence 
a  distinct  and  integral  part  of  tlie  debt,^  payable,  unless  other- 
wise ao'reed,  when  the  principal  is  due,^  and  in  the  same  funds.^ 
As  such,  it  has  a  substantive  character.  The  creditor  is  not 
obliged  to  forego  what  is  unearned  of  the  interest  for  an  agreed 
period,  on  the  tender  of  the  principal.  The  borrower  or  debtor 
cannot,  by  tendering  the  money  to  pay  the  debt  before  it  is 
due,  stop  the  interest ;  for  the  time  of  payment,  in  such  cases,  is 
part  of  the  contract,  and  for  the  mutual  benefit  and  convenience 
of  the  parties.*    After  it  accrues  and  is  due,  it  may  be  recov- 


1  Southern  Central  R.  R.  Co.  v. 
Town  of  Moravia,  61  Barb.  181; 
West  Branch  Bank  v.  Chester,  11 
Pa.  St.  282;  Foster  v.  Harris,  10  Pa. 
St.  457. 

2  Saunders  v.  McCarthy,  8  Allen, 
42;  Cooper's  Adm.  v.  Wright,  23  N.  J. 
L.  200. 

3  IMcCalla  v.  Ely,  64  Pa.  St.  254. 

4  Ellis  V.  Craig,  7  John.  Ch.  7.  In 
this  case  interest  was  payable  at 
stated  periods,  before  the  principal 
■was  to  be  paid.  This  circumstance 
appears,  in  some  measure,  to  have 
influenced  the  decision,  but  the 
general  course  of  reasoning,  as  well 
as  the  force  of  the  authorities  cited, 
are  in  favor  of  the  broader  doctrine 
stated  in  the  text.  The  chancellor 
said:  ''There  can  be  no  doubt  that 
the  parties  may,  by  express  stipula- 
tion, agree  that  a  debt  shall  not  be 
paid  before  a  given  time,  and,  until 
that  time  arrives,  the  debtor  cannot 
tender  the  debt  and  stop  interest. 

"The  question  then  occurs,  what 
was  the  intention  of  the  parties  in 
this  case,  upon  a  fair  and  sound  in- 
terpretation of  the  terms  of  the  con- 
dition of  this  bond?  The  time  of 
payment  was  made  an  essential  part 
of  the  contract  for  the  loan  of 
the  money.  The  terms  of  this  bond 
were  equally  the  agi'eement  of  both 
parties,  and  in  which  their  mutual 
interest   and  convenience  are    pre- 


sumed to  have  been  consulted.  A 
prolonged  time  of  payment,  when 
money  is  loaned  upon  interest,  pay- 
able periodically,  is  not  always  given 
for  the  accommodation  of  the 
debtor;  the  time  is  intended  to  meet 
the  will  and  washes  of  both  parties; 
under  the  case  of  persons  who  are 
uuable  to  earn  money  by  their  own 
exertions,  or  to  employ  themselves 
profitably  in  business,  such  as  aged 
and  infirm  persons,  women  and  in- 
fants, and  also  in  the  case  of  literary 
and  charitable  institutions,  a  safe  in- 
vestment of  money,  with  a  pro- 
longed time  of  payment  of  the  prin- 
cipal, and  short  times  of  payment  of 
the  interest,  is  most  likely  to  meet 
their  wants,  and  pi-omote  their  wel- 
fare. The  interest  of  money  is 
liable  to  fluctuation,  and  money  it- 
self is  a  marketable  commodity,  and 
subject  to  greater  or  less  demand, 
according  to  the  vicissitudes  of  trade 
and  credit.  These  considerations 
may  be  supposed  to  have  had  a 
material  influence  upon  the  terms  of 
the  loan.  We  can  hardly  believe 
that  both  j)arties  in  this  case  had  not 
equally  in  view  their  own  conven- 
ience in  fixing  upon  a  distant  day  of 
payment  of  the  principal;  or  that  it 
was  the  meaning  of  the  contract, 
that  the  obligor  should  be  able  on 
the  next  day,  or  the  next  month,  af- 
ter   tlie    loan,    to    force    back   the 


INTEKEST. 


money  upon  the  plaintiff,  and  break 
up  an  advantageous  investment. 
Why  were  the  usual  words,  or  be- 
fore, omitted  in  the  condition  of  the 
bond,  but  to  show  the  intentions  of 
the  parties,  that  the  principal  was 
not  to  be  paid  before  the  day  speci- 
fied in  the  condition  ? 

"  The  cases  in  the  common  law 
courts  do  not  appear  to  have  settled 
the  question  by  any  direct  or  defini- 
tive decision.  I  think,  however,  the 
language  of  the  books  is  against  the 
defendant;  and  it  would  seem  to  be 
eveiy  where  conceded  tliat  in  no 
case  was  a  tender  before  the  day 
good.  If  the  condition  of  a  bond 
be  payable  on  or  hefore  such  a  day, 
a  plea  of  payment  before  the  day,  to 
wit,  on  sucli  a  day,  is  good.  Anony- 
mous, 2  Wds.  173.  But  if  the  con- 
dition of  the  bond  be  payable  on 
such  a  clay,  a  plea  of  payment  be- 
foi"e  the  day  is  bad;  and  the  defend- 
ant must  either  plead  it  by  way  of 
accord  and  satisfaction,  or  plead 
solvit  ad  diem,  and  prove  payment 
before  the  day  (Jernegan  v.  Harri- 
son, Str.  317;  Anonymous,  2  Wils. 
150;  Winch  v.  Purdon,  Butlers  N. 
P.  174).  These  cases  turned  upon 
the  technical  terms  of  pleading;  and 
whatever  subtileties  exist  on  tliat 
subject,  there  can  be  no  doubt  that 
if  money  be  tendered  and  accepted 
before  the  day  appointed,  it  would, 
when  skillfully  pleaded,  amount  to  a 
discharge  of  the  bond;  for,  if,  as 
Lord  Coke  says  (Coke,  Litt.  212b), 
'  If  the  obhgor  pay  a  lesser  sum  be- 
foi-e  the  day,  and  the  obligee  receive 
it,  it  is  a  satisfaction.'  The  bearing 
of  these  cases  upon  the  iicint  now 
under  discussion  consists,  however, 
in  the  distinction  which  they  as- 
sume between  a  bond  payable  on 
such  a  day,  and  on  or  before  such  a 
day,  and  in  the  doctrine  which  tliey 
necessarily  convey,  that  it  requires 


the  assent  and  concuiTence  of  the 
creditor  to  discharge,  before  the  day, 
a  bond  payable  on  a  given  day. 

"  The  language  of  Lord  Hardwicke, 
as  chief  justice  of  the  king's  bench, 
in  Tryon  v.  Carter  (2  Str.  994),  is  still 
more  explicit  on  the  subject.  The 
bond  in  that  case  was  payable  on  or 
before  the  5th  of  December,  and 
payment  was  made  on  that  day. 
The  case  itself  is  not  applicable,  but 
the  observations  of  the  chief  justice 
are  much  in  point.  '  In  the  case,' 
he  observes,  '  of  a  bond  conditioned 
for  payment  at  a  certain  day,  or 
upon  sucli  a  day,  there  can  properly 
be  no  legal  payment  or  legal  per- 
formance of  the  condition  till  that 
day.  Payment  before  the  day  may, 
indeed,  be  given  in  evidence  on 
solvit  ad  diem,  but  that  goes  upon 
the  reason,  that  the  monej^  is  looked 
upon  as  a  deposit  in  the  hands  of  the 
obligee  until  the  day  comes,  and 
then  it  is  actual  payment.'  The 
argument  in  favor  of  the  right  of 
the  obligor  to  pay  before  the  day 
stipulated,  is  founded  on  the  assump- 
tion of  the  fact,  that  the  delay  of 
the  time  of  payment  is  introduced 
into  the  contract  solely  for  the  bene- 
fit of  the  debtor,  and  tlaat  he  may 
waive  a  benefit  or  renounce  a  time 
given  on  his  account,  according  to 
the  maxim,  that  Quisquis  potest  re- 
nnntiare  jure  pro  se  introducto. 
But  this  is  asking  the  concession  of 
the  very  point  in  dispute.  When  a 
specific  sum,  without  interest,  is 
made  payable  at  a  distant  day,  or 
perhaps,  Avhere  the  sum  may  be  on 
interest,  but  the  interest  is  not  pay- 
able periodically  in  the  intermediate 
time,  there  is  color  for  the  constioic- 
tion  that  the  time  is  given  solely  for 
the  accommodation  of  the  debtor; 
and  if  I  am  not  mistaken,  tlie  doc- 
trine contended  for  on  the  part  of 
the  defendant  is  founded  entirely  on 


534:  INTEREST. 

erecl  by  action,  whether  the  principal  be  then  due  or  not ;  ^  or 
whether  the  principal  has  been  paid  or  not.  In  pleading  to 
show  a  case  for  such  interest,  the  agreement  must  be  specially 
counted  on,  and  a  breach  of  it  alleged.  Interest  is  also  recov- 
erable for  the  detention  of  money  after  it  is  due.  It  is  in  many 
such  cases  recoverable  of  right  and  as  a  matter  of  law,  inde- 
pendent of  the  discretion  of  a  jury.  It  may  also  be  claimed  of 
riglit,  under  various  circumstances  of  contract  and  tort,  on  the 
value  of  property  or  things  in  action,  and  on  the  value  of  ser- 
vices, though  such  value  has  to  be  proved;  on  money  lent,  on 
money  paid,  on  money  had  and  received,  as  well  as  on  divers 
other  forms  of  loss  to  the  plaintiff,  or  gain  to  the  defendant, 
capable  of  pecuniary  estimate ;  and  in  such  cases  it  is  immaterial 
that  there  is  no  agreement  for  interest  or  forbearance.  When 
the  principal  is  due  -upon  contract,  of  course  the  obligation  or 
duty  to  pay  interest  for  its  detention  results  from  the  same 
contract,  and  is  recoverable  thereon  as  damages  for  failure  to 
perform ;  and  when  recoverable  in  tort,  is  chargeable  on  general 
principles  as  an  additional  element  of  damage,  for  the  purpose 
of  full  indemnity  to  the  injured  party. 

As  damages,  interest  is  an  inseparable  incident  to  the  principal 
demand;  follows  it  as  the  shadow  folloAVS  the  substance. 
"Whenever  the  demand  is  satisfied  and  discharged,  the  accrued 
interest  which  was  accessory,  whether  paid  or  not,  is  extinguished.^ 
In  pleading,  it  is  sufficient  to  declare  on  a  default  in  not  paying 
the  principal  demand ;  the  interest  as  damages,  when  not  made 

that  ground.     But  when  money  is  terest  are,  therefore,  cases  of  mutual 

loaned  upon  mterest,  payable  quar-  accommodation,  and  each  party  has 

ter  yearly,  and  a  distant  day  is  men-  an  equal  interest  in  the  preservation 

tioned  for  the  payment  of  the  prin-  of  the  definite  period  of  payment; 

cipal,  the  delay  is  evidently  as  much  and  neither  can  violate  it,  without 

for  the  benefit  of  the  creditor  as  of  a  violation  of  the  terms,  andinten- 

the  debtor,  and  the  law  itself  most  tion  of  the  contract." 

clearly  implies  it.     The  one  party  i  Smart  v.  McKay,  16  Ind.  45. 

wants  the  principal  to  employ  as  2  See  Southern  Central  R.  R.  Co.  v. 

capital  in  his  business,  and  the  other  Town   of    Moravia,    61    Barb.    181; 

party  relies  upon  the  enjoyment  of  Consequa  v.  Fanning,  3  John.  Ch. 

a  portion  of  the  profits  of  that  capi-  587;  Gillespie  v.  Mayor,  etc.  of  N.  Y, 

tal,  in  the  shape  of  interest  period-  3  Edw.  512;    Jacot  v.    Emmett,    11 

ically  iiaid  for  his  support  and  com-  Paige,  143. 
fort.    These  cases  of  loan  upon  in- 


INTEEEST.  OdO 

special  by  contract,  but  left  to  be  measured  by  law,  may  be 
recovered  under  a  general  allegation  of  damages,  without  being 
specially  claimed.^ 

In  another  class  of  cases,  similar  to  those  last  mentioned,  but 
where  the  right  to  interest  is  less  obvious,  and  in  some  others 
where  the  injmy  cannot  be  measured  by  any  precise  pecuniary 
standard,  interest  is  allowable  under  the  advice  of  the  court,  in 
the  discretion  of  the  jury.  These  distinctions  will  be  made 
more  manifest,  and  the  authorities  which  recognize  and  support 
them  cited,  when  we  come  to  discuss  particular  interest  topics, 
-and  the  law  of  damages  in  connection  with  particular  subjects. 

Interest  by  the  early  coioroN  law. —  By  the  ancient  common 
law,  it  was  not  only  unlawful  but  criminal  to  take  any  kind  of 
interest.  As  late  as  the  reigns  of  Henry  VII,  of  Edward  VI, 
•and  of  Mary,  every  rate  of  interest  was  also  forbidden  by 
jexpress  statute.^ 

Interest  est  England  legalized  by  early  statutes. —  In 
1545,  the  statute  of  37  Henry  VIII  was  passed.  The  preamble 
shows  that  interest  was  still  illegal  and  criminal,  but  the  act 
gave  a  negative  sanction  to  it  by  providing  that  "  none  shaU 
take  for  the  loan  of  any  money  or  commodity  above  the  rate  of 
ten  pounds  for  one  hundred  pounds  for  one  whole  year."  It  is 
said  that  the  first  legal  interest  was  taken  in  England  under 
this  statute.  The  rate  was  subsequentl}^,  in  Queen  Anne's  tune, 
reduced  to  five  per  cent.^  And  in  the  reign  of  William  IV,  and 
by  various  statutes  of  Victoria,  interest  has  been  directly  and 

1  Heinman  v.  Schroeder,  74111.  158;  deprived  of  christian  burial."    After 

McConuell  v.  Thomas,  2  Scam.  313.  referring  to  the  j)rohibitory  statutes 

2 Earl  of  Chesterfield  v.  Jansen,  1  in  England,  he  remarks:  "  It  there- 

"Wils.  290.     In  Houghton  v.  Page,  2  fore  follows  that  if  the  common  law 

N.  H.  42,   Judge    Woodbury  says:  of     England    concerning     interest 

*'  To  take  it  (interest)  was  also  in  should  be  adopted,  we  must  hold 

foro    conscientice,    punished    as    a  void  all  contracts  for  any  quantity 

crime,  and  not  only  subjected  the  of  interest,  however  small  and  rea- 

offender  to  the  forfeiture  of  all  liis  sonable.      But  in  this   enlightened 

estate,  but  in  the  'Mirror  of  Justice,'  age,  such  a  rule  could  no  more  be 

191  and  248,  one  of  the  first  English  tolerated  than  the  absurd  principles 

law-books  extant,  it  is  lamented,  as  of    the    common    law    concerning 

'  an  abusion  of  the  common  law,'  witchcraft  and  heresy." 

that  the  offender  was  not  likewise  ^  13  Anne  St.  2,  c.  16. 


536 


mTEREST. 


affirmatively  pro\dded  for.  The  existing  statutes  repealed  the 
law  against  usury ;  and  parties  are  at  liberty  to  contract  for  any 
rate  of  interest.^ 

Interest  at  common  law  in  America. —  There  are  some  cases 
in  which  judges  have  declared  interest  to  be  of  statutory  crea- 
tion.^ But  tlie  general  course  of  judicial  decision,  and  of  legis- 
lation in  this  country,  assumes  the  vahdity  of  contracts  for 
interest  without  statutory  sanction,  and  the  legal  obligation  to 
pay  interest  in  many  cases  not  provided  for  either  by  contract 
or  statute.*     That  the  law  recognizes  the  use  of  money  as  valu- 


1" Public  General  Statutes"— 17 
and  18  Victoria,  cap.  XC,  p.  463  — 
"An  act  to  repeal  the  laws  relating 
to  usury  and  to  the  emolument 
of  annuities"  (10  August,  1854). 
"Whereas,  it  is  expedient  to  repeal 
the  laws  at  present  in  force  relating 
to  usury:  Be  it  enacted  by  the 
queen's  most  excellent  majesty,  by 
and  with  the  advice  and  consent  of 
the  lords  spiritual  and  temporal,  and 
the  commons,  in  this  present  parlia- 
ment assembled,  and  by  authority  of 
the  same,  as  follows:  I.  The  several 
acts  and  parts  of  acts  made  in  the 
parliaments  of  England  and  Scot- 
land, and  Great  Britain  and  Ireland, 
mentioned  in  the  schedule  hereto, 
and  all  existing  laws  against  usury, 
shall  be  repealed.  II.  Provided 
always,  that  nothing  herein  con- 
tained shall  prejudice  or  a,ffect  the 
rights  or  remedies  of  any  person,  or 
diminish  or  alter  the  liabilities  of 
any  person  in  respect  to.  any  act 
done  previously  to  the  passing  of 
this  act.  III.  Where  interest  is  now 
payable  on  any  contract,  express  or 
implied,  for  payment  of  the  legal  or 
current  rate  of  interest,  or  where 
upon  any  debt  or  sum  of  money, 
interest  is  now  payable  by  any  rule 
of  law,  the  same  rate  of  interest 
shall  be  recoverable  as  if  this  act 
had  not  been  passed.     IV.  Provided 


always,  that  nothing  herein  con- 
tained shall  extend  or  be  construed 
to  extend  to  repeal  or  affect  any 
statute  relating  to  pawnbrokers;  but 
that  all  laws  touching  and  concern- 
ing pawnbrokers  shall  remain  in  full 
force  and  effect,  to  all  intents  and 
purposes  whatsoever,  as  if  this  act 
had  not  been  passed." 

2  Close  V.  Field,  2  Texas,  231; 
Isaacs  V.  McAndrew,  1  Mont.  437;, 
Eastiu  V.  Vandorn,  Walk.  (Miss.)  214; 
Hamer  v.  Kirkwood,  25  Miss.  95. 

3  Young  V.  Godbe,  15  Wall.  562; 
Parmelee  v.  Lawrence,  48  111.  331; 
Davis  V.  Greely,  1  Cal.  422.  la 
Young  V,  Polack,  3  Cal.  208,  the 
plaintiff  and  defendant  had  taken  a 
joint  lease  for  improving  certain 
property ;  the  i:)laintiff ,  with  the  con- 
sent of  the  defendant,  made  a  con- 
tract in  his  own  name  for  making 
the  improvement,  and  performed  it. 
He  paid  all  the  expenses  out  of  his 
own  funds.  That  contract  was  drawn 
by  the  defendant  himself.  The 
j)laintiff  claimed  damages  of  the  de- 
fendant for  not  paying  his  share  of 
the  expense  as  the  buUdiug  ad- 
vanced. The  court  decreed  that  the 
defendant  sliould  pay  his  contribu- 
tion of  one-half,  with  three  per  cent.. 
interest  per  month,  the  current  rate, 
and  the  decree  was  affirmed  by  the 
supreme  court. 


i^'tj:kest.  537 

able,  is  placed  beyond  question  by  the  allowance  of  inter- 
est as  damages  for  detention  of  money,  when  the  debtor  is 
in  default,  or  guilty  of  fraud.  Interest  is  now  universally 
treated  as  a  legitimate  consideration  for  the  use  of  money. 
To  take  it  is  deemed  morally  as  well  as  legally  just,  in 
the  general  commerce  of  the  world ;  and  not  only  where  pri- 
vate interests  may  be  suljserved  by  credit,  but  also  in  those  pub- 
Mc  exigencies  which  induce  states  and  nations  to  become 
borrowers.  Statutes  generally  exist,  providing  what  shall  be  the 
rate,  when  not  fixed  by  agreement ;  and  in  many  states  a  maxi- 
mum rate  is  established,  beyond  which  interest  is  expressly  or 
impliedly  prohibited.  In  some,  the  consequences  of  transcending' 
this  limit  are  prescribed ;  and  these  are  various, 

Agreemexts  for  interest. —  Tliere  is  no  difference  in  principle 
between  agreements  to  pay  for  the  use  of  money,  and  those  to 
make  compensation  for  anything  else  that  is  valuable.  And  as 
a  general  rule,  contracts  are  valid  and  will  be  enforced,  although 
there  is  a  great  disproportion  between  the  burden  of  the  under- 
taking on  one  side,  and  the  value  of  the  consideration  for  it  fur- 
nished on  the  other.  The  theor}^  of  the  law  is,  and  its  practical 
operation  is  consistent  with  the  theory,  that  a  small  considera- 
tion will  support  an  onerous  agreement.  The  comparative  ben- 
efit to  be  derived  from  the  mutual  considerations,  executed  or 
executory,  which  are  technically  valuable  in  character,  are  not 
weighed.  It  is  enough  that  a  valuable  consideration  exists ;  its 
adequacy  is  not  an  element  considered  in  determining  whether 
or  not  an  agreement,  founded  upon  it,  is  vahd.  A  few  exam- 
ples of  unconscionable  bargains  are  to  be  found  in  the  books, — ■ 
examples  of  contracts  so  immensel}^  unequal,  and,  if  held  valid,  so 
certain  to  be  disastrous  to  one  party,  that  on  this  ground  of  be- 
ing unconscionable,  they  were  held  not  obligatory.  Still,  it  is 
an  axiom  of  the  law  of  contracts,  that  mere  inadequacy  of  con- 
sideration is  no  defense. 

The  compensation,  however,  for  the  use  of  money,  or  for  its 
detention,  there  being  always  a  customary  or  legal  rate,  is  sus- 
ceptible of  precise  measurement.  Therefore,  contracts  for  a 
higher  rate,  though  they  be  intended  to  have  effect  only  after  the 
principal  sum  is  due,  and  to  measure  the  damages  for  delaying 


538  INTEKEST. 

payinent,  are  liable  to  be  treated  in  respect  to  the  interest  they 
provide  for,  as  contracts  for  penalties.^ 

But  when  parties  are  authorized  by  statute  to  contract  for 
more  than  the  ordinary  legal  rate  of  interest,  either  with  or  with- 
out restriction,  such  contracts  are  permitted  to  have  a  more  hb- 
eral  effect.  A  contract  to  pay  interest  at  a  given  rate,  while  the 
debtor  has  a  right  for  a  definite  period  to  the  use  of  the  princi- 
pal, is  different  in  its  nature  and  incidents  from  a  contract  to 
pay  interest  after  that  right  has  expired ;  in  the  one  case,  it  is  the 
price  of  a  rightful  use  and  possession  of  the  money ;  in  the  other, 
it  is  a  liquidation  of  the  damages  for  detaining  it  without  right ; 
in  the  former  case,  the  contract  creates  the  right ;  in  the  latter, 
interest  as  damages  is  imposed  by  law,  though  the  rate  may  be 
regulated  by  agreement.  In  the  computation  of  interest,  how- 
ever, beginning  before,  and  continuing  after  maturity  of  the  debt, 
no  rest  is  to  be  made  at  maturity,  or  at  the  commencement  of 
suit,  but  the  interest  is  to  be  computed  continuously  from  the 
time  when  it  commences  to  the  settlement,  or  to  the  judgment, 
or  decree.^ 

Where  there  is  an  agreement  for  the  payment  of  money  at  a 
future  day,  and  it  contains  or  is  accomj^anied  with  an  express 
promise  to  pay  interest  from  date  to  the  time  specified  for  pay- 
ment, the  law  is  settled  that  interest  is  chargeable  afterwards 
if  the  principal  remain  unpaid,  although  the  agreement  is  silent 
in  regard  to  interest  after  maturity  This  results  from  the 
general  principle  that  all  contracts  to  pay  money  give  a  right 
to  interest  from  the  time  when  the  principal  ought  to  be  paid.* 
It  can  make  no  difference  with  the  application  of  this  principle 
that  the  contract  contains  an  express  stipulation  for  interest 

iMosby  V.  Taylor,  Gilmer  (Va.),  K.  Marsh.  576;  Van  Rensselaer  v. 
172;  Taul  v.  Everet,  4  J.  J.  Marsh.  Jewett,  2  Comst.  135;  Hunt  v.  Jucks, 
10;  Gould  V.  Bishop  Hill  Colony,  35  1  Hayw.  199  ;  McKinley  v.  Black- 
Ill.  834.  ledge,  Mart.  &  Hayw.  185;  Knicker- 

2  Barker  v.  International  Bank,  80  bocker  Ins.  Co.  v.  Gould,  80  111.  388; 

111.    96;    Brewster    v.    Wakefield,    1  Purdy  v.    Phillips,    11    N.   Y.   406; 

Minn.    352;   Folsom  v.    Plumer,    43  Farquhar  v    Morris,    7    T.    R.    124; 

New  Hamp.  459.  Wenman   v,    Mohawk    Ins.    Co.    13 

SBoddam  v.  Riley,  2  Bro.  Ch.  2;  Wend.    267;    Robinson  v.    Bland,   3 

Williams  v.  Sherman,  7  Wend.  109;  Burr.    1077;    Chapiu  v.   Murphy,   5 

Ten  Eyck  v.  Houghtaling,  12  How.  Minn.  474. 
Pr.   523;   Cartmill   v.   Brown,    1  A. 


GENEUAL    PKOMISE "  WITH    IXTEKEST."  539 

until  the  day  fixed  for  payment ,  for  that  is  not  inconsistent  with 
the  implication,  that  if  not  paid  on  that  day,  interest  is  to  be 
paid  afterwards;  since  without  such  express  stipulation  no 
interest  Avoidd  accrue  until  a  default  of  payment.  The  maxim 
exjyressumfacit  ccssare  ticitnm,  does  not  apply  ;^  for  the  contract 
does  not  speak  to  the  particular  case.^ 

Contracts  relating  to  interest  have  not  been  enforced  with 
uniform  construction  and  effect.  The  English  and  American 
courts  have  not  entu^ely  harmonized ;  and  there  is  a  diversity  in 
the  decisions  of  the  latter.  For  the  purpose  of  showing  more 
clearly  and  in  detail  the  distinctions  which  have  been  made, 
and  the  conflict  of  judicial  decisions,  the  classification  of  sub- 
jects in  the  following  sections  has  been  adopted  as  convenient 
and  sufficiently  comprehensive. 

Section  1. 

GENERAL  PROMISE  TO   PAY  MONEY   "WITH  INTEREST." 

It  is  liberally  construed  —  Laiv  or  custom  supplies  the  rate  —  Legal  or 
stipulated  rate  applies  from  date  —  Whether  the  same  rate  will  con- 
tinue after  the  debt  is  due. 

It  IS  LIBERALLY  CONSTRUED. —  Under  the  first  point  it  is  to  be 
observed  that  such  contracts,  in  common  with  all  others,  are  to 
have  a  reasonable  construction  with  a  view  to  canying  out 
the  actual  lawful  intention  of  the  parties.  The  construction  as  to 
sureties  will  be  strict.^     It  is  liberal  in  respect  to  these  ordinary 

1  See  Spaulding  v.  Lord,   19  Wis.  mentioned  in  the  bond;  it  was  held 

533.  that  C  was  not  bound  to  pay  seven 

-  Thorndike   v.   United    States,   3  i^er  cent,  interest,  but  only  one  per 

Mason,  1.  cent,  on  the  amount  of   the  bond; 

3  Bowery  Savings  Bank  v.  Clinton,  that  he  was  bound  to  pay  one  per 

2  Sandf.  113.     The  bond  of  J  to  the  cent,  until  the  bond  was  paid  off." 
plaintiffs  bore    interest  at  six   per         In  Hamilton  v.  Van  Rensselaer, 

cent.     C  indorsed  a  covenant  bind-  43  Barb.  117;  S.  C.  28  How.  Pr.  192, 

ing  himself  to  them  for  "an  addi-  it  was  held  that  a  surety  who  guar-, 

tional  one  per  cent,  per  annum  in-  anties  the  payment  of  the  interest 

terest,  making  in  all  seven  per  cent,  on  a  money  bond  not  bearing  inter- 

per  annum  on  the  principal  secured  est  bj-  its  terms,  is  liable  for  interest 

by    the    bond,  until    the    principal  accruing  after  the    bond    becomes 

should  be  paid;   the   interest  to   be  due. 
paid  at  the  time  and  in  the  manner         Hamilton  v.   Van  Rensselaer,  43 


540 


IKTEREST. 


sliort  hand  expressions  by  which  interest  is  coraraonh^  stipulated 
for  orally,  and  wliich  frequently  find  their  way  into  writ- 
ten promises.  Contracts  for  interest  at  a  given  rate  p  er  cent, 
will  be  treated  as  contracts  for  interest  at  that  rate  per  annum,^ 
and  even  an  abbreviation  like  "interest  at  ten  per  cen".has  re- 
ceived the  same  construction.-  So,  an  agreement  to  pay  a  given 
per  cent,  has  been  construed  the  same  as  though  it  were  an 
agreement  in  terms  to  pay  interest  at  that  per  cent.* 


N.  Y.  244.  In  this  case  the  defend- 
ant g-uai-antied  "the  punctual  pay- 
ment of  the  interest "  upon  a  bond 
payable  in  six  years  and  six  months 
from  date,  with  interest  semi-annu- 
ally; it  was  held  that  the  guaranty 
only  extended  to  the  interest  falling 
due  before  the  time  of  the  payment 
of  the  principal.  And  that  after 
the  principal  sum  has  fallen  due,  in- 
terest is  payable  not  by  the  original 
terms  of  the  agreement,  but  as  dam- 
ages for  the  breach  of  the  contract. 

Church,  C.  J.,  said:  "He  (the 
guarantor)  neitlier  agreed  to  pay  the 
principal  nor  to  be  liable  for  tlie 
consequences  of  its  non-payment. 
The  intent  of  the  defendant,  ascer- 
tained by  legal  rules,  was  to  agree  to 
pay  the  interest  expressly  provided 
for  in  the  bond  only ;  but  when  the 
plaintiff  urges  that  the  defendant 
has  emijloyed  general  words  guar- 
antying the  payment  of  interest 
upon  the  bond  without  limitation; 
and  that  these  words  include  words 
after  as  well  as  before  default;  and 
claims  to  enforce  the  rigid  rule  of 
liability  therefor,  it  is  pertinent  to 
answer,  that  by  strict  legal  rules  in- 
terest, as  such,  cannot  be  recovered 
*after  default  in  the  payment  of  the 
principal;  and  that  such  interest  is 
not  therefore  within  the  language  of 
the  contract. 

"We  do  not  place  the  decision 
upon  this  narrow  ground,  but  prefer 
to  rest  it  upon  the  proposition  that 


by  the  plain,  ordinary  meaning  of 
the  language  used  in  the  contract, 
when  applied  to  the  facts  existing  at 
the  time  it  was  made,'  the  interest 
recoverable  after  the  principal  be- 
came due,  whether  it  is  regarded  as 
interest  upon  a  continuing  contract, 
or  as  damages  for  its  non-perform- 
ance, was  not  in  the  contemplation 
of  the  parties  at  the  time,  and  was 
not  the  interest  specified  and  pro- 
vided for  in  the  defendant's  con- 
tract. The  construction  contended 
for  by  the  plaintitf  might  render  the 
contract  as  burdensome  as  if  it  had 
been  a  guaranty  of  the  x^ayment  of 
the  principal  itself.  The  defendant 
might  never  be  able  to  discharge  the 
obligation  except  by  the  payment  of 
the  principal,  and  in  that  case  the 
result  would  be  to  compel  him  sub- 
stantially to  perform  a  contract 
which  it  is  conceded  he  never  entered 
into. " 

1  Thompson  v.  Hoagland,  65  111. 
310. 

^  Gramer  v.  Joder,  55  111.  314. 

3  Davis  V.  Rider,  53  lU.  416;  Higley 
V.  Newell,  28  Iowa,  516.  But  see 
Grimth  V.  Furry,  30  lU.  251.  The 
suit  was  on  a  note  in  these  words: 
"  One  day  after  date,  we  promise  to 
pay  Daniel  Furry,  or  order,  four 
hundred  and  fifty-six  and  -^^^^  dol- 
lars, value  received,  ten  per  cent." 
It  was  held  that  the  words  "  ten  i^er 
cent."  in  their  connection  Avere  with- 
out meaning.     The  note  being  de- 


GENERAL    PROMISE "  WITH    ES'TEREST."  541 

Law  or  custom  supplies  the  rate. —  If  the  promise  is  to 
pay  interest  simply,  the  law  supplies  the  rate  if  one  is  fixed  by 
statute;  for  parties  are  supposed  to  contract  in  that  general 
way  with  reference  to  the  law.^  Where  no  rate  is  established 
by  statute,  it  is  assumed  that  in  making  and  accepting  a  prom- 
ise for  interest  generally,  the  parties  have  in  view  the  rate 
which  is  customary  where  the  contract  is  made  and  to  be  exe- 
cuted. That  rate  will  govern  in  respect  to  liquidated  debts  on 
M'hich  the  law  permits  interest  to  be  recovered  as  damages  for 
delay  of  payment  after  they  are  due.- 

Legal  or  stipulated  rate  applies  from  date. —  A  promise  to 
pay  interest  on  money  payable  at  a  future  day  will  be  construed 
as  a  promise  to  pay  interest  before,  rather  than  exclusively  after 
maturity.*  Statutes  exist  in  England,  and  in  many  of  the  states 
of  the  Union,  authorizing  parties  to  contract  for  a  greater  than 
the  legal  rate  which  is  applied  in  the  absence  of  any  agreement, 
on  money  due. 

"When  agreements  of  this  kind,  or  for  a  less  than  the  legal 
rate,  are  made  in  general  terms,  not  specifying  when  the  stipu- 
lated rate  shall  commence,  or  how  long  it  shall  continue,  and 
the  principal  is  payable  at  a  future  day,  the  promise  is  uniformly 
held  to  apply  from  date  to  matmity ;  *  but  whether  it  shall  con- 
tinue afterwards  to  operate,  if  the  principal  remain  unpaid,  the 
adjudications  are  not  harmonious.  Some  cases  hold  that  the 
contract  operates  ex  vigore  only  until  the  debt  by  the  contract 
becomes  due,  and  that  if  it  be  not  then  paid,  the  contract  has 

scribed  in  the  declaration  as  a  note  bind  the  debtor  for  the  annual  pay- 
bearing  ten  per  cent,  interest,  it  was  inent  of  interest.  Englisli  v.  Smock, 
rejected  when  offered  in  evidence,  34  Ind.  115. 

on  the  ground  of  variance.  i  Prevo  v.  Lathrop,  2  111.  305;  Clay- 
In  Patterson  v.  McXeelly,  16  Ohio  v.  Drake,  Miner  (Ala.),  184. 
St.  348,  the  action  was  upon  a  prom-  2  Young  v  Godbe,  15  Wall.  563. 
issory  note  made  payable  one  year  *Conners  v.   Holland,    113    Mass. 
after  date,  and  which  contained  this  150;  Dewey  v.  Bowman,  8  Cal.  145; 
clause:  "the  above  to  be  at  ten  per  Hackenberry  v    Shaw,  11  Ind.  392; 
cent,  annually."    It  was  held  that  Pittman     v.    Barrett,    34    Mo.    84; 
the  word  annually,  in  this  connec-  Ayres  v.  Hayes,   13  Mo.  253;  Winn 
tion,  should  be  understood  as  relating  v.  Young.  1  J.  J.  Marsh.  51;  Ely  v. 
to  and  defining  the  rate  of  interest,  Witherspoon,  3  Ala.  131. 
and  as  equivalent  to  the  words,  per  ^  See  authorities  last  cited, 
annum;  that  such  a  clause  does  not 


542  mxEKEST. 

no  longer  any  effect  whatever  to  govern  the  rate ;  and  the  dam- 
ages for  detention  afterwards  are  limited  to  the  ordinary  legal 
rate  of  interest ;  other  cases  hold  the  contract  rate  to  be  prima 
facie  the  rate  after  maturity,  but  subject  to  be  put  aside  by  con- 
sideration of  whether  it  be  a  reasonable  rate,  or  there  is  a  mu- 
tual intention  to  continue  it.  Other  cases  hold  that  the  contract 
in  such  cases  operates  by  its  own  vigor  after  the  rate  commences 
until  the  debt  is  paid  or  merged  in  a  judgment  or  decree. 

Whether  the  same  eate  will  apply  after  the  debt  is  due. — 
If  the  stipulated  rate  is  less  than  the  legal  rate,  and  the  princi- 
pal is  made  payable  at  a  distant  day,  so  that  it  is  obvious  from 
this  circumstance,  or  from  this  and  others,  that  the  time  of 
credit,  expressly  given,  is  the  whole  time  of  forbearance  mutu- 
ally intended,  the  creditor  would  seem,  in  reason,  entitled  on 
the  expiration  of  that  period,  to  receivd  the  principal,  or  have 
that  rate  of  interest,  afterwards,  which  the  law  gives  generally 
upon  default,  in  the  payment  of  money.  This  would  appear 
more  especially  his  right,  if  he  with  reasonable  promptness 
asserts  his  claim  to  the  money  by  actual  demand,  or  resorts  to 
leiral  measures  for  its  collection.  But  silence  and  inaction  after 
the  maturity  of  the  debt  might  imply  acquiescence  in  the 
debtor's  retention  of  the  money ;  and  justify  the  inference  that 
the  creditor  is  satisfied  to  prolong  the  credit  on  the  original 
terms.  A  prompt  demand,  however,  or  notice  that  such  is  not 
his  intention,  or  any  conduct  vrhich  negatives  acquiescence  in 
the  delay  of  payment  on  the  terms  which  governed  before  the 
debt  was  due,  will  prevent  the  old  rate  being  extended  by  im- 
plication from  extraneous  facts,  or  otherwise  than  by  necessary 
legal  construction.  Where  a  mortgagee  contracted  to  receive  a 
rate  of  interest  less  than  the  legal  rate  during  the  time  of  credit 
agreed  upon  by  the  parties,  it  was  held  that  if  he  suffers  the 
mortgagor  to  remain  in  possession  after  the  mortgage  money 
becomes  due,  an  understanding  of  the  parties  will  be  presumed, 
that  the  interest  shall  continue  at  the  same  ra,te  until  the  mort- 
gagee thinks  proper  to  demand  payment.  But  it  was  held  that 
no  such  presumption  can  be  raised  where  the  mortgagee  attempts 
to  foreclose  his  mortgage;  or  takes  possession  of  the  mortgaged 
premises  on  the  supposition  that  he  has  actually  acquired  the 


GEXERxVL    PKOMISE "  WITH    INTEREST."  543 

equity  of  redemption  as  a  substitute  for  his  debt.^  Two  other 
cases  iu  ISTew  York,  decided  in  equity,  seem  to  hold  the  rate  to 
be  the  same  absohitely  after  maturity  as  before,  by  virtue  of 
the  contract  fixing  the  rate.^  In  both  of  these  cases  the  rate 
was  less  than  the  legal  rate.  In  the  latter,  the  vice-chancellor 
decided  that  the  creditor  was  not  entitled  to  the  legal  rate 
after  maturity,  though  the  debtor  had  regularly  paid  interest  at 
the  legal  rate  for  over  six  years  after  the  debt  becauie  due. 
Such  payments  were  held  not  to  be  evidence  of  a  continuing 
agreement  to  pay  more  than  the  rate  specified  in  the  bond  as 
the  rate  before  maturity.  Later  cases  have  been  decided  at  law 
in  the  same  manner.^  In  a  late  case,  it  was  held  that  the  right 
to  the  same  rate  after  maturity  which  was  fixed  by  contract 
before,  is  a  contract  right  which  cannot  be  impaired  by  sub- 
sequent legislation.*  In  a  case  in  Illinois,^  there  was  a  stipu- 
lation for  "  five  per  cent,  per  month,  as  damages,  from  maturity." 
The  payee,  from  time  to  time  after  maturity,  accepted  interest 
at  ten  per  cent,  per  annum  imtil  the  death  of  the  maker.  And 
it  was  held  that  such  acceptance  of  interest  evidenced  an  agree- 
ment to  substitute  ten  per  cent,  per  year  in  place  of  five  per 
cent,  per  month,  and  was  a  waiver  of  the  higher  rate. 

In  a  Pennsylvania  case,^  it  was  held  that  a  note  payable  at  a 
future  day  with  three  per  cent,  interest  from  the  date,  carries 
that  interest  tiU  the  day  of  pa3mient  fixed  in  the  contract,  and 
after  that  legal  interest.  A  similar  rule  was  laid  down  in 
South  Carolina.'' 

1  Bell  V.  Mayor,  etc.  10  Paige,  49.  5  Bradford  v.  Hoiles,  66  111.  517. 
See  Lawrence    v.   Trustees,   etc.    2  ^  Ludwick  v.  Huntzinger,  5  Watts 
Denio,  577.  &  S.  51. 

2  Miller  v.  BuiToughs,  4  John.  Ch.  ■?  Langston  v.  South  Carolina  E. 
436;  New  York  L.  &  C.  Co.  v.  Man-  E.  Co.  2  Eich.  N.  S.  248.  Two  New 
ning,  3  Sandf .  Ch.  58.  York  cases  have  often  been  cited  in 

3  Andrews  v.  Keeler,  19  Hun,  87;  connection  with  Ludwig  v.  Hunt- 
Association,  etc.  V.  Eagleson,  60  zinger,  as  though  they  tended  to  es- 
How.  Pr.  9.  But  see  Hamilton  v.  tablish  the  same  rule.  These  cases 
Van  Eensselaer,  43  N.  Y.  246;  Eitter  are  United  States  Bank  v.  Cliapiu,  9 
V.  Phillips,  53  N.  Y.  589.  Wend.  471,  and  Macomber  v.  Dun- 

*  Association,  etc.  v.  Eagleson,  60  ham,  8  Wend.  550.     In  the  first  of 

How.  Pr.  9.    See  Morrisania  Savings  these  cases,  the  bank  was  by  law 

Bank  v.  Bauer,  3  L.   Bull.   (N.  Y.)  limited  to  six  per  cent,  interest  upon 

102;  Taylor  v.  Wing,  84  N.  Y.  477.  all  discounts,  and  a  debt  discounted 


5M  INTEEEST. 

A  contract  for  tlie  pajnnent  of  money  at  a  definite  future 
time,  with  a  stipulation  for  tlie  payment  of  interest  at  a  speci- 
fied rate,  stands,  if  not  performed  after  the  date  fixed  for  the 
payment  of  the  principal,  simply  as  a  chose  in  action.  The 
contract  has  then  no  future;  the  time  has  elapsed  for  per- 
formance; there  remains  but  a  right  of  action  for  damages. 
There  is  no  continuing  contract  to  pay  interest  in  any  other 
sense  than  there  is  a  continuing  contract  to  pay  the  prin- 
cipal. The  promise  was,  as  to  both,  to  pay  at  a  day  which  is 
2:)ast.  If  the  principal  had  been  loaned  for  a  term  of  years, 
with  an  agreement  to  pay  interest  semi-annually,  this  agree- 
ment, while  it  runs,  would  impose  the  duty  to  pay  interest 
only  at  those  half-yearly  periods.  But  no  periodicity  would  be 
recognized  in  the  obligation  to  pay  interest  after  the  maturity 
of  the  debt.^  In  a  suit  brought  three  months  after  that  date, 
there  can  be  no  doubt  that  the  creditor  would  be  entitled  to  a 
computation  of  interest  for  that  time,  or  for  any  time,  to  the 
day  of  obtaining  judgment  or  decree.^  The  creditor's  claim  for 
such  interest  could  not  be  defeated  by  the  argument  that  the 
interest  contract  continues,  by  implication,  until  payment  of  the 
debt,  and  by  such  interest  contract,  the  debtor  is  bound  to  pay 
only  once  in  six  months.  Such  an  argument  would  be  entitled 
to  prevail  if  the  interest  contract  were  a  continuing  contract  —  if, 

at  that    rate  was  not  paid  at    ma-  terest  was  to  be  charged  according 

turity.     It  was  held  that  tlie  clause  to  the  terms  upon  which  the  loan 

in  the  charter,  so  limiting  the  rate  of  was    originally    made.     The    court, 

interest,  referred  only  to  discounts  liowever,   held    that    the  true    and 

in  the  ordinary  course  of  business;  only  rational  interpretation  of  the 

tliat  the  defendant's  contract  with  transaction  was  that  the  loan,  made 

the  bank  having  been  broken,  he  in  pursuance    of    the    charter,   not 

was  liable  to  pay  the  rate  of  interest  having  been  renewed  when  it  be- 

fixed  by  the  lex  loci  from  the  time  came    due,   the  interest    upon    the 

the  debt  became  due.     In  the  other  debt  then  due,  like  the  interest  upon 

case,  a  loan  company  was  authorized  every  other  debt  which  has  fallen 

by  its  cliarter  to  charge  interest  for  due,  is  to  be  regulated  by  the  gen- 

a  full  month  where  a  loan  was  for  eral  law  of  the  state  on  that  subject, 

fifteen  days  or  less  than  a  mouth.  Chambliss    v.    Eobertson,    23    Miss. 

A  loan   made  for  twenty  days  i-e-  303;  Tuflfii  v.  Ohio,  etc.  Trust  Co.  3 

mained  unpaid  for  several  months  Disney,  121. 

after  it  was  due.     It  was  contended  i  But  see  O'Neall  v.  Bookman,  9 

on  the  part  of  the  company  that  an  Rich.  L.  80. 

agreement  was  implied  that  the  in-  2  Wheaten  v.  Pike,  9  R.  I.  132. 


GENERAL    PROMISE "  WITH    INTEREST.''  545 

by  its  own  prolonged  operation  and  effect,  it  absolutely  regu- 
lated the  interest  after  as  it  did  he/ore  the  debt  was  due. 

Parties  may,  by  agreement,  liquidate  damages  to  be  paid  in 
case  of  a  future  breach  of  contract ;  and  may,  in  like  manner, 
and  upon  the  same  principle,  fix  the  rate  of  interest  within 
reasonable  limits,  to  be  paid  after  the  debt  is  due.^  But  an 
agreement  in  general  terms  to  pay  interest  on  a  time  debt  is  an 
agreement  primarily  for  the  same  time  as  the  agreement  for  the 
payment  of  the  principal.  The  intention  of  the  parties  is  to  be 
ascertained  from  the  language  of  the  agreement;  and  thus 
ascertained,  the  debtor  intends  to  pay,  and  the  creditor  to  re- 
ceive the  debt,  consisting  of  principal  and  agreed  interest,  on 
the  day  fixed  for  such  papnent.  To  put  any  other  construc- 
tion on  the  agreement  is  to  infer  bad  faith,  or  that  the  parties 
do  not  intend  what  they  clearly  say.  Strictly,  therefore,  such 
an  agreement  does  not  operate  be3^ond  the  pay-da}'".  Whatever 
influence  it  has  in  determining  the  interest  afterwards  is  sec- 
ondary and  probative. 

If  the  debtor  does  not  pay  when  the  debt  is  due,  and  this 
omission  occurs  by  his  default,  the  expectation  that  he  will  pay 
interest  at  the  same  rate  at  least  as  during  the  period  of  stipu- 
lated credit,  is  natural  and  reasonable ;  and  the  existence  of  a. 
legal  obligation  to  do  so  is  agreeable  to  the  analogy  of  other 
contracts,  and  by  such  analogy  is  liable  to  be  modified  by  cir- 
cumstances. The  question  of  interest  after  maturity  is  much, 
governed  by  the  equity  of  the  case ;  circumstances  may  take 
away  the  riglit  altogether.  The  circumstances  which  will  have 
this  effect  will  readily  occur  to  the  professional  mind.  Among 
them  is  a  tender  of  the  debt  which  puts  an  end  to  the  default 
and  stops  interest ;  ^  the  continued  absence  of  the  creditor ;  ^  a 
state  of  war  which  places  the  debtor  and  creditor  in  the  relar 
tion  of  alien  enemies  to  each  other's  government.* 

So  the  rate  of  interest  which  was  obhgatory,  by  agreement, 
during  the  life  of  the  contract,  may  be  so  low,  or  so  high,  as  to 
negative  the  intention,  when  the  contract  was  made,  or  during 

iSee  Palmer  v.  Lefler,   18  Iowa,         ^Du  Belloix  v.  Waterpark,  1  D. 
125;  Taylor  v.  Meek,  4  Blackf.  388.         R.  848. 
2 Ante,  p.  470;  post,  p.  697.  ■'Mease    v.    Stevens,    Coxe,    433; 

Bean  v.  Chapman,  62  AJa.  58. 
Vol.  1  —  35 


5iG 


INTEKi:ST. 


the  default,  that  such  rate  should  continue  after  the  contract 
has  expired ;  and  that  circumstance  may  influence  the  court  to 
reject  the  rate  so  agreed  on  as  a  rule  in  determining  the  inter- 
est to  be  allowed  as  damages.^ 


1  Henry  V.  Thompson,  Minor  (Ala.), 
209.  This  case  is  thus  succinctly 
stated  by  Loomis,  J. ,  in  Hubbard  v. 
Callahan,  42  Conn.  524:  "The  suit 
was  for  the  recoverj-  of  a  large  num- 
lier  of  notes,  differing  in  their  terms, 
and  no  particular  description  of 
them  reijorted;  but  they  were  re- 
duced to  four  general  classes  in  the 
briefs  of  counsel:  *  1st.  To  pay  the 
principal  at  a  future  day,  and  if  not 
punctually  paid,  to  pay  the  premium 
or  interest  at  the  rate  expressed 
from  the  date.  3d.  To  pay  the 
principal  at  a  future  day,  with  in- 
terest at  the  rate  expressed  from  the 
date  till  paid.  3d.  To  pay  the  prin- 
cipal at  a  future  day,  Avith  a  distinct 
agreement  to  pay  the  interest,  not 
stating  the  time  from  which  or  till 
which  it  was  to  run.  4th.  To  pay 
the  principal  at  a  future  day,  with 
interest  from  the  maturity  of  the 
note.' 

"The  rates  of  interest  stipulated 
for  were  in  some  cases  one  hundred 
and  twenty  per  cent,  per  annum;  iii 
others  sixty  per  cent. ;  and  the  very 
lowest  was  thirty  per  cent.  The 
statute  of  Alabama  then  in  force 
provided  'that  any  rate  of  interest 
or  premium  for  the  loan  or  use 
of  money,  wares,  merchandise,  or 
other  commodity,  fairly  and  bona 
fide  stipulated  and  agreed  upon  by 
the  parties  to  such  contract,  ex- 
pressed in  writing  and  signed  by 
the  party  to  be  charged  therewith, 
shall  be  legal.' 

"A  majority  of  tlie  judges  con- 
curred in  refusing  to  allow  the  stip- 
ulated rates  of  interest,  but  they  did 
not  agree  as  to  the  grounds  of  the 
decision.      Judges     Crenshaw    and 


Minor  delivered  very  able  dissenting 
opinions  sustaining  the  stipulations 
for  interest  as  valid  contracts.  The 
majority  of)inions  wei'e  given  by  the 
chief  justice  and  by  Judge  Safford. 
Judges  Ellis  and  Gayle  concurred 
with  the  chief  justice  in  the  opinion 
that  the  contract  on  its  face  fails  to 
sliow  that  the  consideration  was  a 
loan.  One  reason  for  giving  such  a 
literal  application  of  the  statute  is 
stated  to  be  the  unparalleled  rate  of 
interest.  But  in  the  course  of  the 
opinion  the  chief  justice  says:  *  As 
to  the  second,  third  and  fourth 
classes  of  cases  as  arranged  in 
the  brief  and  arguments  of  coun- 
sel, I  am  of  opinion  that  if  the 
considei-ation  had  been  a  fair  and 
bona  fide  loan,  the  parties  had  a 
right  to  stipulate  any  rate  of  inter- 
est witliout  limiting  it  to  a  future 
day,  or  to  the  maturity  of  the  note, 
provided  the  contract  for  interest  be 
absolute  and  unconditional.' 

' '  Judge  Saff ord  held  (in  which 
Gayle  also  concurred),  that  where 
the  rates  of  interest  were  exorbitant, 
and  there  was  no  time  of  forbear- 
ance fixed  by  the  contract,  they 
were  not  -svithin  the  statute."  Bell 
v.  Mayor,  etc.  of  N.  Y.  10  Paige,  49. 
Cook  V.  Fowler,  43  L.  J.  Ch.'855, 
L.  R.  7  H.  L.  Cas.  27,  was  an  action 
upon  a  warrant  of  attorney  given  to 
secure  the  payment  of  £1,330  "on 
the  2d  of  June  next,"  Avith  interest 
at  five  percent,  per  month,  "judg- 
ment to  be  entered  up  forthwith." 
The  lord  chancellor  remarked  upon 
the  stipulation  for  interest  up  to  a 
certain  day,  without  any  mention  of 
subsecxuent  interest  upon  the  face  of 
the    instrument.      He    says:      "No 


GENERAL    TROMISE- 


WITH   INTEREST. 


547 


To  the  rate  specified  in  the  contract  the  parties  have  thereby- 
given  a  sanction,  hy  adopting  it  before  maturity;  they  have 
admitted  it  to  be  a  fair  compensation  for  the  use  of  the  money. 
The  debtor's  omission  to  pay  the  debt  when  due,  should  have 
the  same  effect  to  continue  that  rate  after  maturity,  on  the 
ground  both  of  intention  and  admission  of  its  fairness,  Avhere  it 
exceeds  the  legal  rate,  as  the  silence  and  inaction  of  the  cred- 


doubt,  prima  facie,  the  rate  of  in- 
terest stipulated  up  to  the  time  cer- 
tain, might  be  taken,  and  generally 
would  be  taken,  as  the  measure  of 
interest;  but  this  would  not  be  con- 
clusive. It  would  be  for  the  tribu- 
nal to  look  at  all  the  circumstances 
of  the  case,  and  to  decide  what 
was  the  proper  sum  to  be  awarded 
by  way  of  damages."  The  house  of 
lords  declined  to  award  damages  at 
the  rate  of  sixty  per  cent,  because  it 
was  highly  inequitable.  The  holder 
not  having  entered  up  judgment, 
nor  made  any  definite  claim  against 
the  debtor's  estate  (such  debtor  hav- 
ing died),  for  the  space  of  four 
years  and  upward,  it  was  held  that 
the  tribunal  before  whom  the  claim 
at  last  came  was  justified  in  award- 
ing by  way  of  damages  such  a  rate 
of  interest  as  the  holder  of  the  war- 
rant of  attorney  would  have  been 
entitled  to,  according  to  the  ordi- 
nary rule  of  the  court  of  chancery, 
had  he  entered  up  judgment  on  the 
day  named  in  the  defeasance  to  the 
warrant  of  attorney,  namely,  at  the 
rate  of  four  per  cent.  It  was  held, 
also,  tliat  there  is  no  rule  of  law  that 
upon  a  contract  for  the  payment  of 
money  on  a  certain  day,  with  inter- 
est at  a  fixed  rate,  down  to  that  day, 
a  further  contract  for  the  continu- 
ance of  the  same  rate  of  interest,  is 
to  be  implied. 

In  Brewster  V.  Wakefield,  22  How. 
118,  the  supreme  court  of  the  United 
States  held  that  such  a  contract  is 
spent  when  the  day  of  payment  ar- 


rives; that  there  is  no  stipulation  in 
relation  to  interest,  after  the  debt 
becomes  due;  and  that  if  the  right 
to  interest  depended  altogether  on 
contract,  and  was  not  given  by  law 
in  such  a  case,  the  creditor  would 
be  entitled  to  no  interest  whatever 
after  the  day  of  payment.  The  con- 
tract being  entirely  sUent  as  to  in- 
terest, if  the  notes  be  not  punctually 
paid,  the  creditor  is  entitled  to  in- 
terest after  that  lime  by  operation 
of  law,  and  not  by  any  provision  of 
the  contra,ct.  Therefore  the  inter- 
est after  maturity  should  be  after 
the  rate  established  by  law,  where 
there  is  no  contract  to  reg-ulate  it.  s?, 
There  were  two  notes  sued  on,  one  SB- 
stipulating  interest  at  the  rate  of 
twenty  and  th.e  other  twenty- 
four  per  cent,  per  annum.  C.  J. 
Taney  says:  "Nor  is  there  any- 
thing in  the  character  of  this 
contract  that  sliould  induce  the 
court  hy  supposed  intendment  of  the 
parties,  or  doubtful  inferences,  to 
extend  the  stipulation  for  interest, 
beyond  the  time  specified  in  the 
written  contract.  The  law  of  Min- 
nesota has  fixed  seven  per  cent,  per 
anmmi  as  a  reasonable  and  fair  com- 
pensation for  the  use  of  money;  and 
where  a  party  desires  to  exact  from 
the  necessities  of  a  borrower  mere 
than  three  times  as  much  as  the  leg- 
islature deems  reasonable  and  just, 
he  must  take  care  that  the  contract 
is  so  written  in  plain  and  ambiguous 
terms;  for  with  such  a  claim  he 
must  stand  upon  his  bond." 


548 


INTEREST. 


itor,  where  the  rate  is  less.^  The  statutory  provision  enacted  in 
many  states,  that  judgments  shall  bear  the  same  rate  of  interest 
as  that  expressed  on  the  face  of  the  contract,  or  the  contract 


iBeckwith  v.   Trustees  of  Hart- 
ford, Providence  &  Fishkill  R.  E.  29 
Conn.    268.      A    railroad    company 
issued  bonds,  by  virtue  of  an  act  of 
the  legislature,  bearing  interest  pay- 
able semi-annually  at   the  rate  of 
seven  per  cent,  per  annum;  the  in- 
terest-coupons were  paid  up  to  the 
time    when    the    principal    of    the 
bonds  fell  due.     And  the  question 
was  submitted  to  the  court,  whether 
the    bondholders   were    legally  en- 
titled to  seven  per  cent,  interest,  or 
only  to  six  per  cent.,  the  legal  rate. 
Hinman,  J.,  says:  "  "We  are  of  opin- 
ion that  the  plaintiff  in  this  case  is 
entitled  to  seven  per  cent,  per  an- 
num for  the  detention  of  his  money 
after    tlie    principal    became    due. 
Technically  speaking,  it  is  no  doubt 
true  that  the  sum  recoverable  for 
such  detention  is  treated  as  damages 
for  the  breach  of  the  contract  rather 
than  interest  for  the  money  loaned, 
because,    strictly  speaking,   interest 
can  only  be  claimed  under  a  con- 
tract to  pay  it,  either  express  or  im- 
plied, and  the  express  contract  of 
course  ceased  on  the  day  when  the 
principal  was  to  be  paid,  and  no  im- 
plied contract  can  be  raised  from  a 
total  refusal  to  pay  anything.     But 
damages    are    recoverable    for    the 
breach  of  the  contract;  and  courts, 
in  order  to  give  to  whom  the  money 
is  due  what  he  fairly  may  be  sup- 
posed to  have  suffered  by  withhold- 
ing it  from  him,  and  at  the  same 
time  to  prevent  the  borrower  from 
making  a  profit  by  the  breach  of  his 
contract,   have  regulated  the  dam- 
ages for  such  breach  by  the  usual 
rate  of  interest  at  the  place  where 
the  money  is  detained.    This,  though 
an  arbitrarj'^  rule,  will  generally  oper- 


ate justly,  and  is  much  more  con- 
venient than  any  other  which  could 
be  adopted.     But  the  usual  rate  of 
interest  at  any  place  is  itself  as  arbi- 
trary a  provision  of  law  as  the  dam- 
ages dependent  upon  it,  and  is  by  no 
means    uniform.     It    is    not    only 
known  to  differ  in  different  states 
and  countries,  generally  depending 
upon  positive  statutes,  but  may  vary 
from  the  ordinary  or  more  general 
rate  by  the  parties  agreeing  upon  a 
lesser  rate,  or  if  authorized  so  to  do, 
as  in  the  case  under  consideration, 
by  their  agreement  upon  a  higher 
rate;  or  there  may  be  a  general  stat- 
vite  authorizing  a  higher  rate   for 
money  borrowed  for  some  particular 
purpose,   or  by  a  particidar  class  of 
persons  or  coi-porations;     .     .     and 
the  different  rates  thus  agreed  upon 
become  the  legal  rates  of  interest  in 
respect  to  the  particular  contracts 
during    their  existence.     And    the 
rates  of  interest  thus  established  by 
agreement  must  be  presumed  to  be 
just  and  equitable  under  the  circum- 
stances; that  is,  a  fair  compensation 
in  such  case  for  the  use  of  the  money 
between  the  parties  during  the  time 
the  contract  had  to  run.    Then,  why 
should  we  not  presume,  as  between 
the  same    parties,    that    such  con- 
tinues a  fair  compensation  for  its 
use  until  the  contract  is  performed; 
as  well  after  as  before  the  day  when 
the  principal  was  to  be  paid;  and 
thus    permit    the    rate   of    interest 
agreed  upon  to  control  the  damages 
to  be  paid  for  the  detention  of  the 
money,  as  well  as  the  interest  for  its 
use.     There  is  no  equity  in  favor  of 
one  rate  of  interest  rather  than  an- 
other,  where  they  are    both  legal 
and  within  reasonable  limits,  and 


GENEKAL   PKOMISE  ■ 


WITH    lisTEKEST. 


549 


rate,  is  a  legislative  sanction  of  the  same  rate  after  as  before 
maturity.^ 

In  some  states,  the  rate  stipulated  to  be  paid  during  the  period 
of  credit  has  no  influence  in  determining  the  rate  afterwards, 
but  the  legal  rate  is  uniformly  applied.  This  is  so  in  Minne- 
sota ;  2  in  Kansas ;  ^  in  Kentucky ;  *  in  Maine ;  ^  though  when  a 
note  w^as  payable  one  day  after  date,  and  specified  a  rate  of 
interest  above  the  ordinary  legal  rate,  it  was  held  to  indicate 
an  intention  that  the  note  should  bear  that  rate  after  maturity ; 
and  where  such  intention  is  inferable  or  expressed,  the  conven- 
tional rate  will  be  applied;^  in  Arkansas;^  in  Indiana;^  in 
Rhode  Island,^  and  South  Carolina.^"  The  same  principle  appears 
to  be  held  by  the  supreme  court  of  the  United  States."  In 
England,  the  stipulated  rate  before  maturity  w'ould  seem  to  be 
prima  facie  the  rate  afterwards,^-  but  subject  to  easier  relaxation, 
and  broader  discretion  conceded  to  the  jury,^^  than  is  consistent 
with  the  rule   established  by  a  preponderance  of    American 


the  defendants  ought  not  to  com- 
plain so  long  as  it  is  in  their  power, 
by  paying  the  principal,  to  protect 
themselves  from  paying  wliat  they 
thought  a  reasonable  rate  when  they 
borrowed  the  money." 

iHand  v.  Armstrong,  18  Iowa, 
324. 

2Talcott  V.  Marston,  3  Minn.  339; 
Mason  v.  Callender,  3  id.  3o0;  Kent 
V.  Bown,  3  id.  847;  Chapin  v. 
Murphy,  5  id.  474;  Lash  v.  Zambert, 
15  id.  416;  Moreland  v.  Lawrence,  23 
id.  84. 

3  Robinson  v.  Kinney,  2  Kan.  184; 
Searle  v.  Adams,  3  Kan.  515. 

<Gray  v.  Brisco,  6  Bush,  687;  Ril- 
ling V.  Thompson,  12  Bush,  310. 

5  Duran  v.  Ayer,  67  Me.  145;  Eaton 
V.  Boissonnault,  id.  540. 

sCapen  v.  Crowell,  66  Me.  282; 
Paine  v.  CasweU,  68  Me.  80. 

^ISiewton  V.  Kinnesly,  31  Ark.  620; 
Woodruff  V.  Webb,  32  id.  612;  Petti- 
grew  V.  Summers,  id.  571;  Gardner 
V.  Barnett,  36  id.  476. 

8  Burns  v.  Anderson,  68  Ind.  202, 


overruling  Kilgore  v.  P<>wers,  5 
Blackf.  22;  Richards  v.  McPherson, 
74  Ind.  158. 

9  Peai-ce  v.  Hennessy,  10  R.  I.  223. 

10  Langston  v.  South  C.  R.  R.  2 
S.  C.  248. 

11  Brewster  v.  Wakefield,  22  How. 
118;  Bumhisel  v.  Firman,  22  Wall. 
170;  Holden  v.  Trust  Co.  100  U.  S.  72. 
In  Cromwell  v.  County  of  Sac,  96 
U.  S.  57,  which  was  an  Iowa  case; 
the  court  continued  the  conventional 
rate.  See  Perry  v.  Taylor,  1  Utali,  63, 

12  Cook  v.  Fowler,  7  H.  L.  Cas.  27; 
Keene  v.  Keene,  3  C.  B.  N.  S.  144; 
27  L.  J.  C.  P.  88;  JMorgan  v.  Jones,  8 
Exch.  620;  22  L.  J.  E.xch.  232. 

13  Du  Billoix  V.  Lord  Waterpark,  1 
D.  &  R.  348;  Cameron  v.  Smith,  2  B. 
&  Aid.  305;  Baun  v.  Dalzell,  Moo.  & 
M.  228;  Page  v.  Newman,  9  B.  &  C. 
378;  Aruott  v.  Redfern,  3  Bing.  353; 
Higgins  v.  Sargent,  2  B.  &  C.  348; 
Calton  V.  Bragg,  15  East,  223;  Keene 
V.  Keene,  3  C.  B.  N.  S.  144;  Gibbs  v. 
Fremont,  9  Exch.  25. 


550 


INTEREST. 


authority,  wliicli  is  believed  to  be,  that  the  rate  stipulated,  iu 
general  terms,  before  maturity,  will  be  continued  until  verdict.^ 


iKohler  v.  Smith,  2Cal.  597;  Beck- 
with  V.  Tmstees  Hartford,  etc.  R.  R. 
29  Coun.  2G8;  Adaras  v.  Way,  33  id. 
419;  Hubbard  v.  Callahan,  42  Conn. 
524;  Kilgore  v.  Powers,  5  Blackford, 
22;  Gordon  V.  Phelps,  7  J.  J.  Marsh. 
619;  Pate  v.  Gray,  Hemp.  155;  Hen- 
derson V.  Desha,  id.  231;  Branch 
Bank  v.  Harrison,  1  Ala.  9;  Spencer 
V.  Maxfield,  16  Wis.  178;  Pruyn  v. 
Milwaukee,  18  id.  307;  Marietta  Iron 
Works  V.  Lottimer,  25  Ohio  St.  621; 
Maunett  v.  Sturgess,  id.  384;  Besser 
V.  Hawthorn,  3  Oregon,  125;  Etnyre 
V.  McDaniels,  28  m.  201;  Williams  v. 
Baker,  67  111.  2;)8;  Brewster  v  Wake- 
field, 1  Minn.  352;  Van  Beuren  v. 
Van  Gaasbeck,  4  Cow.  496;  Mont- 
gomery V.  Boucher,  14  Upper  Can. 
C.  P.  45;  Prigdon  v.  Andrews,  7 
Texas,  461;  Hopkins  v.  Crittenden, 
10  Texas,  189;  Harden  v.  Wolf,  2  Tnd. 
31;  Eugler  v.  Ellis,  16  lud  475; 
Hand  v.  Armstrong,  18  Iowa,  324; 
Thompson  v.  Pickel,  20  Iowa.  490; 
Wilson  V.  King,  Morris  (Iowa),  106; 
Burkhart  v.  Sappington,  1 G.  Greene, 
66;  Guy  V.  Franklin,  5  Cal.  416;  Cor- 
coran V.  Doll,  32  Cal.  82;  Wilson  v. 
Marsh,  2  Beasley,  289;  McLane  v, 
Abrams,  2  Nev.  199;  Overton  v.  Bol- 
ton, 9  Heisk.  762;  Warner  v.  Juif,  38 
Mich.  662;  Cecil  v  Hicks,  29  Gratt. 
1;  Burges  v.  Southb;idge  Sav.  Bk.  2 
Fed.  Rep.  500;  Brannon  v.  HeiseJ, 
112  Mass.  63;  Union  Institution  v. 
Boston,  129  Mass.  82;  Cromwell  v. 
County  of  Sac,  96  U.  S.  51;  Faun- 
tleroy  v.  City  of  Hannibal,  5  Dill. 
219;  O'Neill  v.  Bookman,  9  Rich.  80; 
Singleton  v.  Lewis,  2  Hill  (S.  C.  L.), 
408.  In  Spencer  v.  Maxfield,  16  Wis. 
178,  the  action  was  upon  a  note  pay- 
able at  a  future  day,  with  interest  at 
the  rate  of  twelve  per  cent.  It  was 
silent  as  to  interest  after  maturity. 


The  statute  in  force  permitted  par- 
ties to  contract  for  any  rate  not  ex- 
ceeding twelve  per  cent.,  and  seven 
per  cent,  was  the  ordinary  legal  rate. 
The  stipulated  rate  was  held  to  gov- 
ern, after  maturity,  as  a  rate  legally 
fixed.  Cole,  J. :  "  We  have  no  doubt 
but  the  general  understanding 
among  business  men,  has  been  that 
notes,  in  the  form  of  the  one  under 
consideration,  draw  interest  at  the 
rate  of  twelve  percent,  after,  as  well 
as  before  matui'ity.  Such,  we  be- 
lieve to  be  the  construction  placed 
vipon  these  contracts  by  the  com- 
munity, and  we  think  it  is  the  cor- 
rect one.  ...  It  seems  to  be 
strictly  analogous  to  the  case,  where 
a  tenant  holds  over,  where  the  law 
implies  an  agreement  to  pay  rent  ac- 
cording to  the  terms  of  the  express 
lease. ''  The  contract,  on  this  theory, 
imports  an  agreement  to  pay  the 
same  rate  of  interest  after  as  before 
maturity.  There  is  supposed  to  be  a 
tac't  agreement  as  distinguished 
from  a  duty  or  obligation  which 
is  to  be  enforced  on  the  fiction 
of  a  promise;  or  as  distinguished 
from  a  measurement  of  compensa- 
tion for  detaining  money,  by  the 
standard  of  the  rate  of  interest  stip- 
ulated for  its  use  immediately  be- 
fore such  detention. 

In  Spaulding  v.  Lord,  19  Wis.  533, 
where  the  agreement  was  to  pay  in- 
terest, "until  the  time  when  the 
principal  sum  will  be  payable,"  the 
inference  of  a  contract  to  pay  the 
specified  rate,  after  maturity,  was 
repelled  by  the  particular  language 
of  the  promise. 

In  Etnyre  v.  McDaniels,  28  111.  201, 
suit  was  brought  on  a  promise  to  pay 
money  and  ten  per  cent,  interest. 
Breese,  J. ,  said :  ' '  Here  are  two  rates 


GENERAL    PROMISE 


WITH    INTEREST. 


551 


of  interest  provided  for;  one  conven- 
tional, the  other  statutory.  The  ten 
per  cent,  rate  is  expressly  stipulated 
by  the  parties,  and  must  prevail 
over  the  statute  rate.  This  contract 
must  be  construed  like  all  other 
contracts,  and  the  intention  of  the 
parties  must  prevail.  Now,  what  did 
the  parties  intend  when  making  a 
contract  to  pay  ten  per  cent.?  Can 
any  one  doubt  it  was  the  intention, 
as  well  of  the  maker  as  of  the  payer 
of  this  note,  that  ten  per  cent,  should 
be  paid,  until  the  note  was  fully  dis- 
charged. Such  is  the  common  sense 
understanding  of  the  contract,  and 
the  statutory  interest  does  not  con- 
trol at  all.'  Such  contracts  are  made 
every  day.  It  is  the  rate  of  in- 
terest fixed  by  the  parties  them- 
selves, and  to  attach  to  the  debt 
until  it  shall  be  freely  paid,  and  so 
long  as  it  remains  a  note,  conven- 
tional, not  legal  interest  was  the 
contract,  and  such  contracts  are 
sanctioned  by  law." 

The  conclusion  that  the  contract 
rate  shall  govern  after  maturity,  is 
reached,  by  substantially  the  same 
reasoning,  in  Wisconsin,  Illinois  and 
Iowa.  The  construction  of  the  con- 
tract is  different  from  that  put  upon 
the  notes  in  Brewster  v.  Wakefield, 
and  on  the  bonds  in  Beckwith  v 
Trustees,  etc.  These  cases  agree  that 
such  contracts  for  interest  do  not 
extend  beyond  the  day  fixed  for  the 
payment  of  the  principal.  In  the 
former  (Brewster  v.  Wakefield),  for 
that  reason,  it  was  held  that  the 
conventional  interest  ceased  at  ma- 
turity; but  the  Connecticut  case, 
while  it  concedes  that  the  contract 
operates  only  to  the  time  when  the 
principal  is  due,  holds,  nevertheless, 
that  the  conventional  rate  of  interest 
should  be  adopted  as  the  just  meas- 
ure of  damages  after  maturity,  for 
having  been  the  conventional  rate 


immediately  before,  and  because  if 
the  debtor  is  unwilling  to  pay  dam- 
ages at  that  rate,  he  can  avoid  it  by 
paying  the  debt. 

In  Montgomery  v.  Boucher,  14 
Upp.  Can.  C.  P.  45,  the  defendant 
having  made  his  promissory  note 
payable  two  months  after  date,  with 
interest  at  the  rate  of  twenty  per 
cent,  per  annum,  and  having  made 
default  in  payment  thereof  at  ma- 
turity, in  an  action  by  the  holder 
thereon,  the  question  was  submitted 
to  the  jury  as  to  the  amount  they 
would  allow  after  the  note  became 
due,  not  exceeding  twenty  per  cent. 
The  jury  allowed  only  six  per  cent. 
after  the  note  matured.  Upon  mo- 
tion to  increase  the  verdict  by  the 
difference  between  six  and  twenty 
per  cent.,  it  was  held  that  the  rate 
of  interest  agreed  upon  by  the  terms 
of  the  note,  is  the  amount  which 
should  be  allowed  by  the  jury  aa 
interest,  when  allowing  interest  in 
the  nature  of  damages  from  the 
maturity  of  the  note  to  the  entry  of 
the  judgment. 

In  Howland  v.  Jennings  (11 
Upper  Canada,  C.  P.  272),  on  the 
authority  of  Keene  v.  Keene,  3  Com. 
Bench,  N.  S.  144,  the  court  refusefl 
to  reduce  the  verdict  of  a  jury  who 
had  allowed  interest  for  the  whole 
period  from  the  date  at  the  rate  of 
twenty  per  cent,  per  annum,  on  a 
pronxissoiy  note,  payable  one  month 
after  date,  with  interest  at  that  rate. 
The  defendant  contended  that  from 
the  time  the  note  became  due,  only 
six  per  cent,  should  have  been 
allowed;  and  the  judge,  at  Nisi 
Prius,  gave  him  leave  to  move  the 
full  court  to  reduce  the  verdict, 
which  they  refused  to  do.  "  On  the 
whole,"  say  the  court,  "  we  think 
the  weight  of  avithority  is  in  favor 
of  the  interest  agreed  upon  by  the 
parties  being  the  proper  amount  to 


i52 


INTEREST. 


be  allowed  by  the  juiy  as  interest, 
when  allowing  interest  in  the  nature 
of  damages,  from  the  time  the  note 
matures  to  the  time  the  judgment 
is  to  be  entered.  It  may  also  be 
argued  this  is  the  proper  mode  of 
estimating  the  interest,  or  damages 
to  be  allowed,  as  being  that  which 
w^as  in  the  contemplation  of  the 
parties  when  they  entered  into  the 
contract,  according  to  the  doctrine 
laid  down  in  Hadley  v.  Baxendale, 
9  Exch.  341." 

In  Keene  v.  Keene,  3  Com.  Bench, 
N.  S.  144,  the  suit  was  against  the 
drawer  on  a  bill  of  exchange  payable 
with  interest  at  ten  per  cent,  per  an- 
num. The  master  computed  interest 
at  that  rate  after  maturity  to  judg- 
ment. A  motion  was  made  on  be- 
half of  the  defendant  to  refer  to  the 
master  for  reconsideration;  and  it 
■was  stated  in  support  of  the  motion, 
that  the  acceptor,  whose  liability 
measures  that  of  the  drawer,  is 
liable  only  to  interest  at  five  per 
cent,  after  due.  He  was  interrupted 
by  Willes,  J.,  who  said:  "That  clearly 
is  not  so;  until  maturity  of  the  bill, 
the  interest  is  a  debt;  after  its  ma- 
tui'ity,  the  interest  is  given  as  dam- 
ages, at  the  discretion  of  the  jury. 
Col.  Fremont  had  to  pay  twenty-five 
per  cent,  (the  Californian  rate  of  in- 
terest) upon  the  bills  which  he  drew 
there,  on  Mr.  Buchanan,  the  secre- 
tary of  state,  at  Washington,  and 
which  were  protested  for  non-ac- 
ceptance. Gibbs  V.  Fremont,  9 
Exch.  25.  The  jury  saw  fit  to  adopt, 
as  the  measure  of  damages,  the  rate 
of  interest  which  the  parties  them- 
selves have  fixed,  and  the  master  is 
substituted  for  the  jury."  On  the 
decision  of  the  case,  Cockburn,  C.  J., 
said :  ' '  The  master  has,  as  he  well 
might,  given  in  the  shape  of  dam- 
ages the  rate  of  interest  the  parties 
themselves  have  contracted  for.     I 


think  he  has  done  quite  right." 
Crowder,  J.,  said:  "The  master 
would,  I  think,  have  acted  very 
unreasonably  if  he  had  not  assessed 
the  damages  by  the  rate  which  the 
parties  had  stipulated  as  the  value 
of  the  money."  Pujol  v.  McKinlay, 
42  Cal.  559. 

By  statute  in  Nevada  the  rate  of 
interest  or  damages  for  detention  is 
the  same,  after  breach,  as  that  fixed 
by  the  contract  before  breach.  So 
that,  though  the  statute  gives  dam- 
ages at  the  rate  of  ten  per  cent,  per 
annum  for  withholding  money  gen- 
erally, it  allows  a  higher  rate  cor- 
responding to  the  contract  rate  when 
money  is  withheld  which  bore,  by 
contract,  a  higher  rate  before  ma- 
turity. McLane  v,  Abrams,  2  Nev. 
199. 

Nutting  V.  McCutcheon,  5  Minn. 
882,  was  a  suit  on  a  note  for  f  1,000, 
and  interest  at  two  and  a  half  per 
cent,  per  nionth,  secured  by  mort- 
gage. When  the  note  became  due, 
the  maker  obtained  the  privilege  of 
retaining  the  money  longer,  upon 
condition  that  he  would  pay  interest 
thereon  quarterly  at  the  current 
rates.  No  contract  for  forbearance 
for  any  specific  time  was  entered 
into,  nor  did  the  maker,  at  the  be- 
ginning of  the  several  extensions 
that  were  granted,  speciallj^  agree  to 
I^ay  any  particular  rate  of  interest, 
and  no  writings  were  executed  in 
relation  to  the  same;  but  at  the  end 
of  each  quarter  the  parties  would 
meet  and  agree  ui^on  the  value  of 
money  for  the  past  quarter,  and  the 
maker  would  pay,  and  the  payee 
would  receive,  such  amount  in  satis- 
faction of  the  interest  accrued,  and 
indorse  the  same  upon  the  note  as 
payment,  up  to  that  date,  with  the 
consent  of  the  maker.  It  was  held 
that  the  absence  of  a  definite  con- 
tract for  forbearance  on  the  one  side, 


AGEEEjVLELNTS   FOK   INTEliEST "  UNTIL   PAID."  553 


Section  2. 

agreements  for  interest,  "until  paid." 

Agreements  for  interest  from  date  until  the  debt  is  paid  —  Agreements 
for  a  different  rate  after  the  debt  is  due. 

Agreements  for  interest  at  higher  than  legal  rates,  both  before 
and  after  maturity,  will  be  discussed  in  another  place.^  Two 
classes  of  agreements  will  receive  present  attention ;  lirst,  those 
which  provide  expressly  for  interest  from  date  at  a  uniform  rate 
until  the  debt  is  paid ;  and,  secondly,  those  w^hich  provide  for 
interest  from  date,  in  case  the  debt,  not  otherwise  bearing 
interest,  shall  not  be  punctually  paid,  or  for  interest  to  com- 
mence at  maturity,  or  thenceforth  to  bear  an  increased  rate,  in 
case  of  default. 

Agreements  foe  interest  from  date  until  the  debt  is  paid. — 
Agreements  which  belong  to  the  first  class  have,  of  course,  no 
other  effect  than  to  give  interest  before  maturity,  if  the  rate 
stipulated  is  the  legal  rate,  and  this  will  continue  until  the  debt 
is  paid  or  collected.  Where  the  conventional  rate  is  higlier  than 
the  ordinary  legal  rate,  but  does  not  exceed  that  which  the 
parties  are  authorized  by  law  to  stipulate  for,  it  is  binding- 
according  to  its  terms ;  that  is,  until  the  debt  is  paid,  or  the 
contract  merged  in  a  judgment  or  decree,^  except  in  the  state  of 

and  payment  ou  the  other,  at  the  and  executed  by  the  parties,  money 
beginning  of  each  quarter,  did  not  paid  thereunder  cannot  be  recovered 
affect  the  validity  of  the  jjayments,  back.  The  rule  that  where  con- 
as  the  parties  obviated  any  such  dif-  tracts  are  made  in  violation  of  stat- 
ficulty  by  stipulating  the  precise  utory  provisions,  or  in  contraven- 
terms  at  the  end  of  the  time,  and  tion  of  public  policy,  they  are  void, 
immediately  executing  them  as  set-  and  money  paid  thereunder  may  be 
tied.  When  a  contract  lacking  the  recovered  back,  is  confined  in  its 
essential  feature  of  mutuality  at  its  application  to  such  contracts  as  in- 
inception  is  subsequently,  by  the  volve,  by  their  subject  matter,  some 
act  of  the  parties,  corrected  in  substantial  violation  of  the  spirit  of 
this  particular,  and  executed,  the  the  law  or  policy,  and  not  such  as 
question  of  mutuality  between  the  stipulate  some  matter  recognized 
pai'ties  is  pvit  to  rest,  although  the  and  pennitted  by  law  or  policy,  but 
statute  requires  that  the  contract  for  in  a  manner  other  than  the  one 
the  payment  of  such  interest  shall  prescribed. 
he  in  writing;  yet  where  it  is  made  i  See  post,  section  3. 
without  writing,   and    carried    out  -  Fisher  v.  Bidwell,  37  Conn.  363; 


554:  INTEREST. 

Minnesota.  In  Iowa,  the  contract  rate  is  comjDuted  on  the 
juclo-ment,  in  furtherance  of  the  spirit  and  intent  of  the  contract.^ 
But  the  interest  included  in  the  judgment  bears  interest  only  at 
the  legal  rate.^ 

In  Minnesota,  the  statute  authorizing  parties  to  contract  for 
any  rate  of  interest,  is  construed  strictly ;  and  does  not  extend 
beyond  the  date  fixed  for  payment.  It  is  held  there  that  interest 
as  damages  cannot  be  increased  by  contract  above  the  ordinary 
legal  rate ;  such  contracts  are  treated  as  providing  penalties  to 
secure  punctuahty  of  payment,  and  consequently  as  having  no 
legal  effect.^ 

The  courts  which  hold  that  a  general  promise  of  interest 
before  maturity,  at  a  given  rate,  will  operate  afterwards  by 
supposed  intention  of  the  parties,  will  and  do  enforce  a  con- 
tinuance of  the  same  rate,  when  that  intention  appears  expressly 
or  inf erentially.*  And  other  courts  which  enforce  the  same  rate 
after  as  before  maturity,  not  on  the  ground  mainly  of  intention, 
but  because  the  rate  adopted  by  the  parties  for  one  period  is 
presumed  to  be  fair  and  just  for  another  immediately  succeed- 
ing, wiU  continue  that  rate  when  the  parties  have  given  a  like 
assurance  of  its  fairness,  for  the  whole  period  that  they  con- 
templated the  possibility  of  the  money  being  retained.'^  Wherever 
the  privilege  given  to  parties  to  stipulate  special  rates  of  interest 
above  the  general  rate,  is  held  to  apply  to  the  time  the  debtor 
retains  the  money  after  it  is  due,  it  would  seem  to  be  matter  of 
course  to  enforce  such  agreements,  if  the  agreed  rate  is  the 
same  before  and  after  the  specified  day  of  payment.^ 

Palmer    v.    Leffler,    18    Iowa,    135;  Paine  v.    Caswell,  68  Me,  80;  Hub- 

Pajol  V.  McKinley,  42  Cal.  559;  Tay-  bard  v.  Callahan,  43  Conn.  534,  537. 

lor  V.  Meek,  4  Blackf.  388;  Mead  V.  sBeckwitli    v.    Trustees,    etc.    29 

Wheeler,  13  N.  H.  351;    Dudley  v.  Conn.  268. 

Rejmolds,  1  Kan.  285,  affirmed  in  ^it  jg  obvious  that  the  final  de- 
Young  V.  Thompson,  2  Kan.  83.  oisions  in  Brewster  v.  Wakefield  and 

1  Weisen  v.  King,  Morris,  145.  Cooke    v.    Fowler    turned    on    the 

2Burkhart    v.     Sappington,  1   G.  absence  of    an  express    agreement 

Greene,  66.  fixing  or  intending  to  fix  the  rate 

3  Kent  V,  Bown,  3  Minn.  347;  Tal-  after  maturity.     It  was  held  in  both 

cott  V.  Marston,   id.  339;  Mason  v.  that  the  agreed  rate  before  is  not,  in 

Callender,  3  id.  350;  Daniels  V.  Ward,  every  instance  at  least,  the  agreed 

4  id.  168;  Brown  v.  Nagel,  21  id.  415,  rate  after  maturity,  and  the  intima- 

4Capen  v.   Crowell,  66    Me,   383;  tious  were  that  an  express  agree- 


agkeements  for  interest "  until  paid."  555 

Agreements  for  a  different  rate  after  the  debt  is  due. — 
The  second  class  of  cases  comprises  those  in  which  interest,  by 
agreement,  is  made  retrospectively  to  attach  for  the  period  of 
credit,  or  prospectively  at  a  severer  rate,  in  consequence  of  the 
principal  not  being  paid  when  due. 

An  agreement  in  advance  that  if  the  principal  be  paid  at 
maturity  the  debt  may  be  discharged  without  interest;  but, 
otherwise,  to  bear  interest  from  date,  at  a  legal  rate,  is  an 
undertaking  cc^uditionally  to  do  something  which  the  parties 
had  a  right  to  stipulate  for  at  first  absolutely.  Nor  is  there  any 
intrinsic  difference  between  such  an  agreement  and  one  for 
payment  of  the  principal,  at  a  certain  day,  with  interest,  with  a 
proviso  that,  if  such  principal  be  punctually  paid,  no  interest 
shall  be  charged.  There  can  be  no  other  legal  objection  to 
making  money,  as  interest,  payable  on  a  contingency,  or  on  the 
happening  of  a  default,  than  to  make  the  principal  itself  de- 
pend on  an  uncertain  event.  The  question  in  both  cases  is 
whether  the  payment,  required  on  one  alternative  —  the  other 
dispensing  with  it  —  is  a  penalty.  The  fact  of  there  being  an 
alternative  or  contingency  in  the  contract  does  not  decide  the 
question.  A  party  may  have  two  prices  for  goods,  one  for  cash 
down,  and  another  and  higher  price,  when  time  is  given  for 
payment.  A  pm-chaser  wdio  is  advised  of  these  terms,  and 
chooses  to  buy  on  time,  would  not  be  heard  to  object  that  the 
time  price,  or  its  excess  over  the  cash  price,  was  a  penalty.  He 
is  as  firmly  bound  for  the  price  at  which  he  purchased,  as  though 
no  opportunity  to  purchase  on  other  terms  had  been  offered. 
Either  price  being  legal  when  the  purchaser  made  his  contract, 
it  is  binding ;  and  an  alternative  price,  determinable  by  default, 
may  become  absolute  and  collectible.  There  is  not  the  same 
latitude  allowed  to  agreements  for  interest  as  for  prices  of 
property,  but  there  is  entire  freedom  to  contract  for  interest  not 
above  legal  rates.  A  party  who  is  a  debtor,  or  Avho  makes  a 
loan,  and  to  whom  forbearance  for  one  period  is  offered  with- 
out interest,  and  another  and  longer  period  on  terms  of  paying 
interest,  may  choose  either  offer  without  advantage  by  w^ay  of 

ment  to  continue  the  rate  after  S.  454,  a  promise  of  a  guarantor  to 
agreement  would  be  effectual.  And  pay  a  specified  interest  after  ma- 
in Florence  v.  Jennings,  2  C.  B.  N.      turity  was  actually  enforced. 


556  INTEKEST. 

mitigation  of  his  agreemeat  for  having  rejected  the  other.  ITor 
is  a  contract  any  less  binding,  in  respect  to  either  alternative, 
which  may  become  absolute,  when  one  of  the  parties  has  a  con- 
tinuing option  until  the  time  of  performance,  and  may  then 
make  his  election  by  performance.^ 

It  is  true,  one  of  the  test  rules  for  distinguishing  penalty  from 
liquidated  damages  is,  that  if  a  larger  sum  is  agreed  to  be  paid 
for  default  in  paying  a  smaller,  the  larger  sum  is  a  penalty.  A 
note  made  payable  for  a  sum  certain  on  a  specified  day,  without 
interest,  if  punctually  paid ;  otlierwise,  with  interest  from  date, 
comes  within  the  letter  of  the  rule.  If  the  letter  of  the  rule 
controlled,  the  stipuhition  for  interest  would  be  held  to  be  a 
penalty.  The  rule,  however,  does  not  apply  to  such  a  case. 
It  is  designed  to  prevent  agreements  to  pay  a  large  sum 
in  consequence  of  default  in  paying  a  small  one,  which  is  the 
actual  debt,  because  interest  is  the  estabhshed  measure  of  dam- 
ages for  such  default.  It  does  not  apply  to  invalidate  any  legal 
rate  promised  on  the  event  of  a  default. 

]^o  damages  for  the  mere  non-payment  of  money  can  ever  be 
so  liquidated  between  the  parties  as  to  evade  the  provisions  of 
the  law  which  fix  the  rate  of  interest.^  In  ah  such  cases,  the 
law  having  fixed,  by  positive  rules,  the  rate  of  interest,  has 
bounded  the  measure  of  damages.^  This  is  the  rule,  the 
other  the  corroUary ;  because  interest  is  the  measure  of  dam- 
ages for  breach  of  contract  to  pay  money,  the  law  wiU  treat 
as  penalty  any  larger  sum  which  a  debtor  may  agree  to  pay  for 
such  a  default.  But  within  the  bounds  of  the  legal  rates  of  in- 
terest, parties  may  hquidate  damages  for  not  paying  money 
when  due.* 

1  Ante,  p.  477.  without  including  the  back  interest, 

2  2  Sedgw.  on  Dam.  216.  and  this  judgment  satisfied  by  exe- 

3  On-  V.  Churchill,  1  H.  Black.  233.  cution;     afterwards    the    judgment 

4  Hackenberry  v.  Shaw,  11  Ind.  was  amended,  under  the  order  of  the 
392;  Brown  v.  Maulsby,  17  Ind.  10;  court,  so  as  to  include  the  interest 
Gulleyv.  Remy,  1  Blackf.  69;  Wake-  from  date.  Nesbitt,  J.:  "  The  sev- 
field,  Adm'r,  v.  Beckley,  Ex'r,  3  Mc-  eral  assignments  of  error  in  this 
Cord,  283;  Daggett  V.Pratt,  15  Mass.  cause  resolve  themselves  into  one 
177.  See  Richards  v.  Marsham,  2  question,  and  that  is,  is  the  agree- 
G.  Greene,  217.  ment  upon  tlie  face  of  the  papers,  to 

In  Alexander  v.  Troutman,  1  Ga.  pay  interest  from  date,  if  tlie  prin- 
469,   judgment    had    been    entered      cipal  sum  is  not  punctually  paid  at 


AGREEMENTS   FOR   INTEREST 


UNTIL    PAID. 


551 


A  rate  of  interest  fixed  by  statute  is  entirely  arbitrary ;  but 
if  it  fixes  an  absolute  limit  vrhich  cannot  be  transcended  by  any 
interest  contract,  while  payment  is  expressly  postponed,  any 
agreement  for  a  greater  rate  after  maturity,  by  reference  to 
that  standard,  provides  for  more  than  compensation.  This, 
however,  is  the  case  only  in  a  technical  point  of  view ;  for  the 
default  in  paying  may  occur  under  such  circumstances  that  the 
higher  rate  will  be  no  more  than  just  compensation. 


its    maturity,   in  the    nature  of    a 
penalty  ? 

"  The  court  below  decided  it  to  be 
an  undertaking  to  pay  the  back  in- 
terest as  damages  for  a  failure  to 
pay  the  principal  sum  at  the  matur- 
ity of  the  note.  ...  If  this 
back  interest  is  stipulated  damages, 
then  the  plaintiff  below  is  entitled 
to  recover  it;  if  a  penalty,  he  is  en- 
titled under  the  contract  to  recover 
whatever,  in  the  proper  form  of  ac- 
tion, he  could  prove  to  be  the  quan- 
tum of  his  injury.  The  parties  do 
not  call  it  either  the  one  or  the  otlier; 
if  they  did,  the  name  they  give  to  it 
would  not  change  its  nature.  That 
is  settled  by  the  authorities.  Story's 
Eq.  sec.  1318.  The  amount  in  tliis 
case  is  liquidated,  whether  it  be  pen- 
alty or  damages;  for  the  agreement 
is  in  case  of  non-payment  punctually, 
then  to  pay  '  interest  from  date; ' 
that  is,  the  interest  which  the  law 
allows,  to  be  computed  from  the 
date  of  the  note.  By  referring  to 
the  note,  and  the  law  of  the  state, 
the  amount  will  be  ascertained,  id 
certiim  est  quod  eertum  reddi  potest. 
One  thing  is  very  clear;  that  is,  that 
neither  the  courts  of  Great  Britain, 
nor  of  our  Union,  have  estabUshed 
any  rule  by  which  it  can  always 
with  certainty  be  determined  what 
is  a  penalty  and  what  liquidated 
damages.  We  shall,  of  coiuse,  un- 
dertake to  establish  none.  It  is 
settled  by  the    later  cases,  that  in 


order  to  ascertain  whether  the  sum 
specified  iu  the  agreement  is  to  be 
considered  a  penalty  or  liquidated 
damages,  the  court  niust  look  at  the 
whole  of  the  agreement;  and  unless 
it  clearly  appear  thereby  to  have 
been  intended  by  the  parties  as  liqui- 
dated damages,  it  will  be  considered 
as  a  penalty.  Tidd's  Pr.  877;  6  Bam. 
&  Cress.  216;  11  Mass.  81.  In  com- 
menting on  this  subject,  Mr.  Justice 
Story  remarks:  '  But  we  are  care- 
fully to  distinguish  between  cases  of 
penalties,  strictly  so  called,  and  cases 
of  liquidated  damages.  The  latter 
properly  occur  when  the  parties 
have  agreed  that  in  case  one  paiiy 
shaU  do  a  stipulated  act,  or  omit  to 
do  it,  the  other  party  shall  receive  a 
certain  sum  as  the  just,  appropriate 
and  conventional  amount  of  the 
damages  sustained  by  such  act  of 
omission.  In  cases  of  this  sort, 
courts  of  equity  will  not  interfere  to 
grant  relief;  but  deem  the  parties 
entitled  to  their  own  measure  of 
damages;  provided  always,  that  the 
damages  do  not  assume  the  character 
of  gross  extravagance;  or  of  wanton 
or  unreasonable  disproportion  to  the 
nature  or  extent  of  the  injury.' 
Story's  Eq.  Jur.  sec.  1318;  Eden  on 
Injunction,  41. 

"Upon  a  careful  review  of  the 
authorities,  we  are  prepared  to  say 
that  this  extract  affords  the  best 
general  rule  upon  a  question  of  no 
little  complexity.    We  do  not  see 


558 


INTEEEST. 


Treating  a  sum  agreed  to  be  paid  at  a  future  day,  as  repre- 
senting the  actual  debt  due  at  that  day,  and  the  credit  or 
forbearance  to  that  time  as  having  been  in  some  way  fully 
compensated  in  the  transaction  in  which  the  debt  originated,  an 
agreement  to  pay  an  additional  sum,  whether  under  the  name 
of  interest  or  not,  in  case  of  default  in  not  paying  that  debt 
when  it  becomes  due,  is  essentially  an  agreement  for  a  penalty ; 
but  unless  the  statute  arbitrarily  fixes  a  rate  of  interest  not  to 
be  exceeded,  it  cannot  be  said  that  any  rate  of  interest  is  so 
perfectly  a  compensation  that  any  larger  rate  would  be  more 
than  compensation. 


why  its  applicaticn  may  not,  in  most 
cases,  determine  what  is  a  penalty, 
and  what  damages.  Its  appHcation 
relieves  lis  from  doubt  as  to  what  is 
the  law  of  the  case  before  vis.  It  is 
a  safe  general  rule,  not  to  interfere 
with  contracts  that  parties  have 
thought  proper  to  make,  but  enforce 
contracts.  If  the  meaning  of  the 
parties  is  reasonably  plain,  the  court 
will  not  be  astute  to  find  out  a  dif- 
ferent meaning.  The  parties  in  this 
case,  and  in  all  others  of  like  char- 
acter, have  the  unquestionable  right 
to  fix  their  own  measure  of  dam- 
ages. They  are  presumed  to  know, 
better  than  a  jury  could  determine 
for  them,  what  injury  would  result 
from  any  given  act  or  omission. 
And  if  the  parties  have  made  their 
contract,  and  it  is  not  in  contraven- 
tion of  the  law,  let  it  even  be  con- 
ceded to  be  unreasonable;  it  is  right 
to  compel  them  to  abide  by  it.  In 
Lowe  V.  Peers  (Burrow,  2229),  Lord 
Mansfield  sustains  these  general 
views  in  these  words:  'When  the 
precise  suna  is  fixed  and  agreed  upon 
between  the  parties,  that  very  sum  is 
the  ascertained  damages,  and  the 
jury  is  confined  to  it.'  In  that  case. 
Peers  had  in  writing  bound  himself 
to  marry  Mrs.  Lowe,  and  in  default, 
to  pay  her  one  thousand  pounds. 
This  was  held  to  be  a  case  of  dam- 


ages. A  reason  for  abiding  the 
damages  which  the  parties  have 
agreed  upon,  is  found  in  the  difficulty 
which  a  jury  would  find,  in  many 
cases,  of  ascertaining  the  amount  of 
the  injury  sustained.  6  Biug.  141. 
In  the  case  we  are  now  determining, 
we  know  of  but  one  criterion  which 
the  jury  would  have  by  which  to 
fix  the  damages  which  the  payee 
sustained,  and  that  is  the  very  one 
by  which  the  parties  themselves  as- 
certained them;  to  wit,  the  legal 
i-ate  of  interest  on  the  money.  .  .  . 
On  the  other  hand,  it  may  be  consid- 
ered as  settled,  that  where  a  larger 
sum  is  stipulated  to  be  paid  in  order 
to  secure  the  prompt  payment  of  a 
lesser,  it  is  a  case  of  penalty.  2  Bos. 
&  Pul.  348,  So,  too,  where  a  speci- 
fied sum  is  agreed  upon  to  cover 
different  breaches,  and  would  be  in 
some  cases  too  large,  and  in  others  too 
small,  that  is  a  case  of  penalty.  6 
Barn.  &  Cress.  216.  In  all  cases, 
where  the  damages  are  excessive, 
they  are  held  to  be  penalty.  Story's 
Eq.  sec.  1318.  Such  was  the  case 
read  from  Alabama  determined  by 
the  supreme  court  of  that  state. 
There  the  back  interest  reserved 
ranged  from  two  and  a  half  to  ten 
per  cent,  per  month." 

After  showing  that  the  facts  fulfil 
the  other  conditions  of  Judge  Story's 


AGKEEME2rrS    FOR   INTEREST "  UNTIL   PAID. 


559 


If  a  debtor  owing  a  sura  certain  agrees  to  pay  it  at  a  future 
day,  witli  interest  at  a  given  rate,  he  should  Ijc  deemed  to  have 
disciiarged  his  precise  legal  duty  and  obligation  by  paying 
when  due  that  sum,  together  with  interest  computed  at  that 
rate.  An  additional  provision  in  the  agreement,  that  if  he 
makes  default  in  paying  such  principal  and  interest  when  due, 
he  shall  pay  a  higher  rate  of  interest  from  date,  is  an  agree- 


rule  in  respect  to  liquidated  dam- 
ages, the  oijinion  continues:  "  The 
benelits  of  these  contracts  upon 
time,  contrary  to  the  received  opin- 
ion, according  to  the  legal  view  of 
them,  are  reciprocal.  When  A  sells 
iwoperty  or  lends  his  money  to  B, 
and  takes  his  note  at  twelve  months, 
the  possession  of  the  property,  or 
the  money  passing  at  the  time  to  B, 
the  legal  inference  is,  that  the  price 
of  the  property  or  money  is  en- 
hanced by  the  interest  on  tlie  cash 
price  of  the  property,  or  the  actual 
sum  loaned  for  twelve  months.  Tliis 
interest  is  added  in  the  note.  Now 
if  there  be  a  stipulation,  that  in  case 
of  non-payment  at  maturity  the 
note  shall  bear  interest  from  date, 
and  it  is  not  paid,  and  the  back  in- 
terest is  collected,  the  common  opin- 
ion is,  that  A,  in  the  above  case, 
realizes  sixteen  per  cent,  upon  this 
contract.  But  is  this  true  ?  It  is  true 
that  he  does  in  fact  receive  sixteen 
per  cent. ,  but  eight  per  cent,  of  that 
interest  is  off  setted  by  the  use  of  the 
proi^erty  or  the  money  in  the  hands 
of  B,  the  use  being  worth  eight  per 
cent,  to  him.  The  consequence  is, 
that  in  cases  where  the  damages, 
thus  stipulated,  do  not  exceed  eight 
per  cent.,  the  payee  realizes  only 
eight  per  cent,  upon  his  money,  or 
the  pi-ice  of  his  property.  Then  the 
result  of  such  a  contract  as  the  one 
before  us,  enforced,  is,  that  the 
payee  gets  eight  per  cent.,  the  law- 
ful interest  upon  money.  Now  is 
such    an    amount    otherwise    than 


just?  We  think  not.  And  if  just, 
it  is  not  grossly  extravagant  or 
wanton,  or  unnecessarilj^  dispropor- 
tioned  to  the  injury. 

'  'We  know  that  in  point  of  fact  the 
giving  of  time  does  often  enliance 
the  price  of  property  or  money  far 
beyond  eight  per  cent.,  as  stated. 
But  how  do  we  judicially  know  that 
to  be  the  case  here?  We  reason 
from  the  record.  The  reasonable- 
ness and  justness  of  the  damages 
may  be  variously  illustrated.  We 
refer  only  to  the  instance  of  admin- 
istrators whose  notes  are  taken  at 
twelve  months,  and  very  often  with 
the  condition  found  in  this  note. 
It  is  of  serious  importance  to  the 
estate  which  he  represents,  that  the 
debts  thus  contracted  be  promptly 
paid.  At  the  expiration  of  twelve 
mouths,  he  is  liable  not  only  to  be 
called  upon,  but  to  be  sued,  if  the 
estate  which  he  represents,  which  is 
very  generally  the  case,  has  no  re- 
sources to  i^ay  debts  but  the  pro- 
ceeds of  sales;  and  the  debts  con- 
tracted on  account  of  such  sales 
are  not  promptly  met;  then  he  is 
put  to  great  inconvenience,  and  the 
estate  of  his  intestate  injured.  He 
is  compelled,  perhaps,  to  borrow 
money  at  exorbitant  rates;  to  sub- 
mit to  be  sued  and  pay  costs,  or  to 
sue  upon  the  notes  in  his  liands,  and 
pay  commission  for  collecting.  In 
this  case,  eight  per  cent,  for  twelve 
months  cannot  be  considered  unjust 
or  excessive  as  damages."  This 
opinion  seems  to  rest  on  the  falla- 


560  INTEKEST. 

ment  tliat  by  its  terms,  if  literally  enforced,  would  make  the 
debtor  liable  on  the  day  following  the  maturity  of  his  debt  for 
an  extra  sura  which  would  be  greatly  disproportioned  to  the  in- 
terest for  one  day ;  ^  still,  could  it  be  treated  as  penalty  if  it 
would  not  be  such,  had  the  same  rate  been  adopted  absolutely 
in  the  contract? 

Where  additional  interest,  depending  on  default,  is  stipulated, 
and  this  higher  rate  does  not  exceed  the  legal  rate,  or  is  a  rea- 
sonable one  not  exceeding  any  limit  below  which  parties  are 
authorized  to  contract  for  any  rate,  it  should  probably  be  legally 
assumed  that  the  consideration  was  deemed  by  the  parties, 
when  contracting,  as  equivalent  to  the  higher  rate ;  or  that  such 
increased  rate  is  no  more  than  a  just  indemnity  for  the  disap- 
pointment and  injury  occasioned  by  the  default ;  that  the  par- 
ties have  made,  and  intended  to  make,  an  alternative  contract, 
as  to  interest,  to  secure  punctuality  of  payment ;  or  in  case  of 
default,  to  give  the  creditor  the  rate  of  interest  he  was  author- 
ized to  claim,  and  demanded  for  forbearance.^ 

Where,  looking  at  the  substance  of  the  contract  rather  than 
the  particular  collocation  of  words  by  which  it  is  expressed,  the 
damages  or  pecuniary  consequences  stipulated  to  result  from 
default  do  not  contravene  any  statutory  provision,  nor  tran- 
scend what  the  parties  might  legitimately  and  reasonably  agree 
shall  be  paid  without  default,  or  during  a  prolonged  period  of 
credit,  there  would  seem  to  be  no  legal  impediment  to  adjudg- 
ing that  the  very  contract  wliich  the  parties  have  made  shall  be 
enforced. 

Contracts  for  a  higher  rate  of  interest  after  maturity  than 
the  debt  had  previously  borne,  and  higher  than  the  ordinary 
rate  fixed  by  law,  have  been  upheld  and  enforced  according  to 

cious  assumption,  that  though  agree-  want  of  punctuality  in  paying  the 
ments  to  pay  on  time  the  price  of  debt  when  clue,  consisting  by  con- 
property,  or  a  loan,  where  the  inter-  cession  of  principal  and  interest,  is 
est  is  added  to  the  principal  when  the  only  interest  in  the  transaction, 
the  pi'omise  is  made,  the  debtor  i  Billingsly  v.  Cahoon,  7  Ind.  184; 
really  pays  no  interest  for  that  time,  Wernway  v.  Mothershead,  3  Blackf . 
because  he  obtains  an  equivalent  or  401. 

more  in  the  possession  of  the  prop-  2  See  Mead  v.  Wheeler,  13  N.  H. 

erty  or  money,  and  that  therefore  351;    Wilkerson    v.    Daniels,    1    G. 

the  retrospective  interest  made  pay-  Greene,  179. 
able  on  the  face  of    the  note  for 


AGREEMENTS   FOE  TJSIIET.  561 

their  terms.  Thougli  there  is  some  conflict  of  decision,  it  is  be- 
lieved that  according  to  the  decided  prejionderance  of  authority, 
such  contracts  are  valid ;  unless  the  rate  exceeds  that  which  the 
statute  authorizes  to  be  stipulated  for ;  and  also  subject,  in  ex- 
treme cases,  to  having  the  rate  cut  down  because  it  is  so  dis- 
proportioned  to  the  actual  value  of  money  that  it  should  be 
regarded  as  in  the  nature  of  a  penalty.*  Contracts  for  very 
large  rates  of  interest  have  been  sustained ;  as  three  dollars  per 
month  for  the  detention  of  thirty ; '  five  dollars  per  week  for  de- 
tention of  four  hundred  and  thirty-two  dollars -,3  and  other 
instances  of  rates  from  twenty  to  one  hundred  and  tw^enty  per 
cent,  per  annum.* 

Section  3. 
agreements  for  more  than  legal  rate  before  maturity. 

Effect  of  usurTj  found  —  Wlio  may  take  advantage  of  usui^y  —  When  con- 
tracts not  declared  void  for  usury  —  Computation  under  usury  statutes. 

Effect  or  usury  found. —  It  is  not  proposed  to  discuss  what 
constitutes  usury ;  but  the  effect  of  usury  found  on  the  amount 
of  recovery,  or  the  effect  of  agreeing  to  pay  interest,  before  ma- 
turity of  the  debt,  exceeding  the  limit  fixed  by  statutes.  The 
early  statutes  in  this  country  have  been  generally  moulded  after 
the  statute  of  Anne ; '  first,  forbidding  the  taking  of  interest 
above  a  certain  rate ;  and  secondly,  declaring  void  agreements 
and  securities  for  greater  rates.  The  taking  of  usury  has  some- 
times also  been  made  a  criminal  offense.  Under  such  legisla- 
tion, the  important  question  is  the  existence  of  usur}\  It 
is  not  a  favored  plea ;  though  a  legal  defense  to  which,  when 

iWemway     v.     Mothershead,     3  Lawrence    v.    Cowles,    13    III.  577; 

Blackf.   401;  Latham  v.  Darling,  3  Smith  v.  Whitaker,  23  lU,  367;  Blair 

lU.    203;  Youug  v.    Flake,  15   U.  C.  v.   Chamblin,  39  111.    521:  Miller  v 

C.  P.  360;  Witherow  v.    Briggs,    67  Kempner.  32  Ark.  573;  Budgett  v. 

111.    96:    Davis    v.    Rider,     53    111.  Jordan,  id.  154;  Portis  v.  Memll,  33 

416;  Young   v.  Thompson,    2   Kan.  id.  416;  Bailey  v.  McClure,  73  Ind. 

83;  Gould  v.  Bishop  Hill  Colony,  35  275;    White  v.    litis,   24    Minn.  43. 

111.  324;  Wilkerson  v.  Daniels,  1  G.  But  see  Newell  v.  Houlton,  22  id.  19. 

Greene,    179;    Taylor    v.    Meek,    4  2  Latham  v.  Darling,  2  III.  203. 

Blackf.   388;    Phinuey  v.    Baldwin,  3  Wernway     v.     Mothershead,    3 

16  lU.    108;    Palmer    v.    Leffler,    18  Blackf.  401. 

Iowa,  125;  Reeves  v.  Stipp,   91   III.  <  Taylor  v.  Meek,  4  Blackf .  388. 

609;  Downey  v.   Beach,   78  111.  53;  M2  Anne  St.  2,  ch.  16, 
VOT,.  T  —  30 


5C2  INTEKEST. 

establislied,  the  courts  have  given  effect,  it  has  been  judicially 
denounced  as  unconscionable.^  Courts  require  parties,  who  would 
avail  themselves  of  it,  to  pursue  correct  practice  in  the  first 
instance;  if  they  err,  their  defense  will  not  be  treated  with 
indulgence.^ 

It  is  deemed  equitable  that  the  creditor  should  receive  the 
principal  and  legal  interest ;  but  it  is  an  imperfect  equity ;  the 
creditor  cannot,  himself,  assert  it  by  any  action  or  suit  based 
upon  it ;  on  the  contrary,  usury  is  as  fatal  to  his  suits  in  equity 
to  enforce  usurious  demands  as  at  law ;  and  if  the  debtor  has  paid 
usury  otherwise  than  voluntarily,'^  he  may  recover  it  back.  It 
is  a  passive  equity,  which  the  debtor  must  recognize  and  per- 
form only  when  he  asks  equity.  Accordingly,  when  he  asks  a 
favor  in  practice,  by  invoking  the  equitable  power  of  the  court, 
by  motion,*  and  when  he  appeals  to  a  court  of  equity  for  relief 
against  the  usurious  contract,  or  against  the  effect  of  any  legal 
assertion  of  the  debt,  or  to  procure  the  aid  of  equity  to  establish 
the  fact  of  usury,  as  by  discovery,  he  will  be  obliged  to  submit 
to  the  condition  of  paying  the  principal  and  lawful  interest.* 

1  Merrills  v.  Law,  9  Cow.  65;  Marsh  ^  Livingston  v,  Tompkins,  4  John. 
V.  Laslier,  13  New  Jersey  Eq.  SoS.  Ch.    415;     Rogers    v.     Rathbun,     1 

2  Beach  v.  Fulton  Bank,  3  Wend.  John,  Ch.  367;  Tnpper  v.  Powell, 
573;  Lovett  v.  Cowman,  6  Hill,  233;  id,  439;  Fanning  v.  Dunham,  5 
Woolcott  V,  McFarlan,  id.  227;  id.  132;  Fitroy  v.  Guillim,  1 
National  Fire  Ins.  Co,  v.  Saekett,  11  T,  R,  153;  Mason  v,  Gardiner,  4 
Paige,  660;  Collard  v.  Smith,  13  New  Bro,  Ch,  438;  Sehemerhorn  v.  Tol- 
Jersey  Eq,  43;  Remy  v,  Shaw,  8  N,  man,  14  N.  Y,  93;  Conner  v.  Mey- 
J.  Eq,  355,  ers,  7  Blackf,  337;  Cooper  v.  Tappan, 

3  When  voluntai'ily  paid,  usurj-  4  Wis.  362;  Piatt  v,  Robinson,  10  id. 
cannot  be  recovered  back.  Smith  v.  128;  MiUer  v.  Ford,  1  N,  J,  Eq,  358; 
Coopers,  9  Iowa,  376;  Nicholls  v.  Legoux  v.  Wante,  3  Har.  &  J.  184; 
Skeel,  12  Iowa,  300;  Shelton  v.  Gill,  Jordan  v,  Trumbo,  6  Gill  &  J,  103; 
11  Ohio,  417;  Graham  v.  Cooper,  17  McRaveu  v.  Farley,  6  How,  (Miss,) 
Ohio,  605;  Mosely  v.  Smith,  31  Tex,  569;  Noble  v.  Walker,  33  Ala,  456; 
441;  Manny  V,  Stockton,  34  m,  306;  RuddeU  v.  Ambler,  18  Ark,  369; 
Carter  v,  Moses,  39  111,  539;  Tomp-  Taylor  v.  Smith,  2  Hawks,  465;  Pear- 
kins  V.  Hill,  38  111,  519.  Nor  charge  son  v.  Bailey,  23  Ala,  536;  McGeehe 
the  excess  of  pa3^ments  above  legal  v.  George,  38  Ala.  333;  Wilson  v. 
rate  against  the  principal  debt.  Hardesty,  1  Md.  Ch,  66;  Ballinger 
Pettis  V,  Ray,  13  R.  I,  344,  See  Bond  v,  Edwards,  4  Ired,  Eq,  449;  Thomas 
V.  Jones,  8  S.  &  M.  368,  v,  Doub,  8  Gill,  1;  Boyers  v,  Boddie. 

"*  Beach  v.  Fulton  Bank,  supra;  3Hump,  666;  Hudnit  v.  Nash,  16  N. 
Remy  v.  Shaw,  supra.  J.  Eq,  550. 


AGEEEMENT8  FOB  USUET.  563 

Who  mat  take  ADVAiifTAGE  OP  USURY. —  As  usury  is  a  defense 
personal  to  the  debtor,  and  those  standing  in  relations  of  privity 
to  hhn,  it  is  not  an  illegal  element  when  the  usurious  debt  be- 
comes a  principal  in  the  undertaking  of  a  third  party,  as  be- 
tween liim  and  the  creditor,  upon  a  new  consideration.^  This 
principle  is  of  general  application ;  it  will  prevent  deductions 
for  usury  to  which,  as  between  the  creditor  and  the  debtor,  the 
latter  is  entitled  to  under  various  statutes,  when  such  deductions 
are  asked  for  or  against  other  persons  who  have  novated  or 
paid  the  usurious  debt  at  the  debtor's  request.- 

WUEX     CONTRACTS    NOT     DECLARED     VOID     FOR     USURY. lu    thc 

statutes  of  several  of  the  states,  and  in  some  charters  for  com- 
mercial corporations,  there  has  been  a  simj^le  prohibition  of  in- 
terest above  a  certain  rate,  but  no  provision  that  agreements  and 
securities  for  such  interest  should  be  void.  Under  such  legis- 
lation it  has  been  made  a  question  whether  such  agreements 
and  securities  are  to  be  treated  as  wholly  void, —  whether  the 
reservation  of  interest  above  the  legal  rate  renders  the  whole 
contract,  as  an  entire  thing,  illegal, —  so  that  the  principal,  as  well 
as  interest,  is  to  be  regarded  as  involved  in  an  unlawful  venture : 
or  whether  such  agreements  are  void  only  to  the  extent  of  the 
illegal  interest.  On  this  question  there  is  some  conflict  of  de- 
cision. In  a  case  in  the  national  supreme  court,  where  usury  in 
the  transfer  of  a  promissory  note  was  complained  of  by  the 
maker,  the  court  said  the  taking  of  interest  by  the  bank,  beyon<l 
the  sum  autliorized  by  the  charter,  would  doubtless  be  a  viola- 
tion of  the  charter,  for  which  a  remedy  might  be  applied  by  the 
government ;  but  as  the  act  did  not  declare  that  it  shall  avoid 
the  contract,  it  was  not  perceived  how  the  defendant  coidd 
avail  himself  of  this  ground  to  defeat  a  recovery.  The  stat- 
ute containing  no  express  provision  that  usurious  contracts 
should  be  utterh^  void,  the  contract  was  to  be  deemed  valid,  at 
least  in  respect  to  ^>ersons  who  were  strangers  to  the  usury.^ 
In  a  later  case  that  court  held  that  a  contract,  made  in  viola- 

1  Pence  v.  Christraan,  15  Ind.  257;  but  see  Totten  v.  Cooke,  2  Met.  (Kv.) 
Stephenson  v.  Muir,  8  Ind.  352.  275;  Stevens  v.  Davis,  3  Met.  211. 

2  Briukerhoff  v.  Foote,  1  Hoff.  3  Fleckner  v.  Bank  of  the  U.  S.  S 
291 ;  Thurston  v.  Prentiss,  1  Mich.  Wlieat.  338. 

193;  Shirley  v.   Spencer,  9  111.  583; 


564 


INTEREST. 


tion  of  the  same  charter  fixing  a  limit  of  interest,  where  the 
usury  was  set  up  by  the  other  party  to  the  usurious  contract, 
was  void  in  toto.  The  decision  was  put  upon  the  naked  pro- 
hibition in  the  charter,  expressly  laying  out  of  view  the  general 
statute  on  the  subject  of  interest.  It  Avas  so  held  void  by  a 
majority  of  the  court,  on  general  principles.  The  reservation 
of  interest  in  the  contract  at  a  rate,  the  taking  of  which  would 
be  a  violation  of  the  charter,  vitiated  the  contract  for  both 
principal  and  interest,  and  rendered  it  utterly  void.^  This  de- 
cision was  followed  at  the  circuit  by  a  Maryland  case  decided 


1  Bank  of  the  U.  S.  v.  Owens,  3 
Pet.  527.  The  language  of  the  char- 
ter was:  "  The  bank  shall  not  be  at 
liberty  to  purchase  any  public  debt 
whatever;  nor  shall  it  take  more 
than  six  per  cent,  per  annum  for  or 
upon  its  loans  or  discounts."  It 
was  held  that  an  agreement  "cor- 
ruptly and  usuriously"  to  loan  de- 
preciated bills,  taking  therefor  a 
note  on  time,  bearing  legal  interest, 
was  a  violation  of  the  charter. 

Johnson,  J.,  said:  "To  under- 
stand the  gist  of  the  question,  it  is 
necessary  to  observe  that,  although 
the  act  of  incorporation  forbids  the 
taking  of  a  greater  interest  than  six 
per  cent.,  it  does  not  declare  void 
any  contract  reserving  a  greater 
sum  than  is  permitted.  Most,  if  not 
all  the  acts,  passed  in  England,  and 
in  the  states,  on  the  same  subject 
(1839),  declare  such  contracts  usuri- 
ous and  void.  The  question,  then,  is, 
whether  such  contracts  are  void  in 
law,  upon  general  principles."  In  a 
previous  part  of  the  opinion,  he 
said:  "  Some  doubts  have  been 
thrown  out  whether,  as  the  charter 
speaks  only  of  taking,  it  can  apply 
to  a  case  in  which  the  interest  has 
only  been  reserved,  not  received. 
But  on  that  point  the  majority  are 
clearly  of  opinion  that  reserving 
must  be  implied  in  the  word  taking, 
since  it  cannot  be  permitted  by  law 


to  stipulate  for  the  reservation  of 
that  which  it  is  not  permitted  to  re- 
ceive. .  ,  .  When  the  restrictive 
policy  of  a  law  alone  is  in  contempla- 
tion, we  hold  it  to  be  a  univei'sal  rule 
that  it  is  unlawful  to  contract  to  do 
that  which  it  is  unlawful  to  do."  The 
contract  being  held  to  be  within  the 
prohibition,  the  opinion  is  that  such 
contracts  are  void  upon  general 
principles.  The  authorities  cited  are 
wholly  English,  and  unquestionably 
sound  on  both  sides  of  the  Atlantic. 
They  may  be  distinguished,  how- 
ever, from  the  case  decided,  in  this 
important  particular:  the  funda- 
mental purpose  for  which  the  con- 
tracts in  question,  in  the  cases  cited, 
were  made,  or  to  which  they  w^ere 
ancillary,  was  illegal;  malum  in  se 
or  malum  prohibitum.  In  the 
Owens  case,  the  principal  purpose  of 
the  transaction  —  the  loan  and 
promise  of  interest  —  was  lawful; 
making  loans  for  interest  was  one  of 
the  main  objects  of  the  incorpora- 
tion; the  illegality  complained  of 
was  an  incidental  violation  of  the 
charter.  There  is  the  difference  be- 
tween the  case  decided  and  those 
cited  to  support  it,  of  an  incident  be- 
ing impressed  with  the  character  of 
the  principal,  and  the  principal 
being  infected  by  the  vice  of  the  in- 
cident. 


AGKEEMENTS   FOR   USUET.  565 

bj  Taney,  C.  J.,  upon  a  simple  constitutional  prohibition  of  in- 
terest above  a  specified  rate  which  was  exceeded  in  the  contract 
that  was  the  subject  of  the  action.^ 

The  Maryland  interest  law,  as  modified  by  the  act  of  1845, 
prohibited  the  taking  of  more  than  six  per  cent,  per  annum,  in 
the  language  of  the  statute  of  Anne ;  but  by  that  act  the  lender 
was  entitled,  notwithstanchng  the  contract  exceeded  that  limit, 
to  recover  the  principal  and  six  per  cent.  This  law  was  in  force 
when  the  constitution  of  1850  took  effect.  That  instrument 
contained  a  clause  in  these  words :  "  The  rate  of  interest  in  this 
state  shall  not  exceed  six  per  cent,  per  annum,  and  no  higher 
rate  shall  be  taken  or  demanded ;  and  the  legislature  shall  pro- 
vide by  law  all  necessary  forfeitures  and  penalties  against 
usury."  Before  any  legislation  under  the  constitution,  this  case 
■  arose  upon  a  bill  of  exchange  to  which  a  plea  of  usury  was  inter- 
posed. On  deinurrer  to  this  plea,  Taney,  C.  J.,  following  the 
doctrine  of  the  supreme  court,  held  that  the  prohibition  in  the 
constitution  was  inconsistent  with  and  abrogated  the  provision 
of  the  act  of  1845,  giving  the  lender  the  principal  and  six  per 
cent,  interest.  And  he  declared  that,  "  as  the  constitution  has 
forbidden  the  taking  or  demanding  of  more  than  six  per  cent., 
no  contract  made  in  this  state  can  be  enforced  where  a  higher 
rate  of  interest  is  taken  or  demanded  bv  the  contract."  "  A 
court  of  justice  cannot  lend  its  aid  to  him  to  recover  it  (the 
money  loaned),  because  the  contract  for  the  loan  is  one  entire 
thing,  and  consequently  is  altogether  invalid  or  void,  and  it 
would  be  contrary  to  the  duty  of  a  cornet  of  justice  to  assist  a 
party  in  consmnmating  an  act  which  the  law  forbids."  The 
absence  of  any  penalty  was  held  no  argmnent  in  support  of  the 
action.^  Bat^  the  supreme  court  of  that  state  arrived  at  a  dif- 
ferent conclusion.  They,  in  effect,  held  that  the  absolute  pro- 
hibition in  the  constitution  was  not  inconsistent  with  the  act  of 
1S45  in  respect  to  allowing  the  creditor  to  recover  upon  a  usu- 
rious contract  the  principal  and  legal  interest.  No  penalty, 
forfeiture,  or  other  punishment  was  prescribed.  The  question 
has  also  been  decided  in  Indiana.    Usury  there  was  made  an 

1  Dill  V.  EUicott,  Taney,  233.  8  In  Bandel  v.  Isaac,  13  Md.  202. 

2  Id. 


56G 


INTEREST. 


offense  punishable  on  indictment  by  fine  of  double  the  amount 
of  the  usury.  The  decision  was  based  on  the  authority  of  the 
case,  cited,  in  the  supreme  court  of  the  United  States  ^ 


1  Fowler  V. Throckmorton,  6  Blackf . 
326.  Judge  Blackford  delivered  the 
opinion  of  the  majority  of  the  court. 
He  said:  "The  plaintiff  contends 
that,  though  the  contract  is  pro- 
hibited by  the  statute,  still  it  is  not 
void,  because  it  is  not  declared  to  be 
so  in  express  terms.  There  is  noth- 
ing in  this  argument.  A  contract 
made  for  or  about  any  matter  or 
thing  which  is  prohibited  and  made 
unlawful  by  statute,  is  a  void  con- 
tract, though  the  statute  itself  does 
not  mention  that  it  shall  be  so. 
Comyu  on  Cont.  66,  and  the  cases 
there  cited;  Chitty  on  Conti'acts, 
694.  The  charter  of  the  late  bank 
of  the  United  States  says  that  '  it 
(the  bank)  shall  not  be  at  liberty  to 
purchase  any  public  debt  whatever, 
nor  shall  it  take  more  than  at  the 
rate  of  six  per  cent,  per  annum  for 
interest  upon  its  loans  or  discounts.' 
The  contract  for  a  higher  rate  of  in- 
terest is  there  prohibited,  but  it  is 
not  in  terms  declared  void,  because 
it  was  not  in  terms  declared  to  be  so. 
In  a  suit  by  the  bank  on  a  contract, 
in  which  the  defendant  pleaded 
usury  under  the  above-named  clause 
in  the  charter,  the  plaintiff  con- 
tended, as  is  done  here,  that  the 
contract  is  not  void,  because  it  is 
not  expressly  declared  to  be  so.  The 
supreme  court  of  the  United  States, 
however,  thought  otherwise.  They 
decided  that  a  contract  in  violation 
of  the  bank  charter  was  void  on  the 
ground  that  the  contract  was  pro- 
hiljited  by  law.  They  state  the  sub- 
stance of  several  decisions,  both  an- 
cient and  modern,  which  are  dii-ectly 
in  support  of  their  opinion,  but 
which  it  is  not  deemed  necessary  to 


refer  to  here.  The  Bank  of  U.  S.  v. 
Owens,  2  Pet.  527.  The  case  cited 
is  also  an  answer  to  the  plaintiff's 
objection  to  declaring  the  contract 
void  as  to  the  principal  debt,  though 
it  be  so  as  to  the  illegal  interest. 
The  statute,  in  forbidding  the  tak- 
ing of  interest  beyond  a  certain  rate, 
on  a  loan,  prohibits  the  making  of  a 
loan  on  such  terms,  and  the  prohibi- 
tion must  apply,  if  at  all,  to  the 
whole  contract.  That  is  the  view 
which  the  United  States  court,  in 
the  case  we  have  referred  to,  takes 
of  the  subject.  It  is  there  decided 
that  if  the  plea  of  usuiy  made  out  a 
case  of  violation  of  the  bank  charter, 
fixing  the  rate  of  interest,  the  notes 
sued  on,  which  had  been  given  for 
the  money  lent,  or  the  contract 
therein  expressed,  was  void  in  law, 
so  that  no  recovery  could  be  had 
thereon."  This  decision  was  made 
in  1842,  and  the  next  legislature 
passed  a  new  act,  which  was  held  to 
apply  to  previous  contracts,  provid- 
ing that  usurious  contracts  shall  not 
be  void;  but  that  in  actions  upon 
them  the  plaintiff  shall  recover  the 
principal  sum  without  interest,  and 
pay  costs.  L.  1843,  p.  581.  Dewey, 
J.,  dissented.  He  said:  "I  do  not 
controvert  the  correctness  of  the 
general  doctrine,  that  a  contract 
made  in  violation  of  law  is  null  and 
void.  But  I  do  not  assent  to  the 
proposition  that  there  is  nothing  in 
the  history  of  our  legislation  on  the 
subject  of  usury  to  prevent  the  un- 
qualified application  of  that  doctrine 
to  agreements  stipulating  for  more 
than  legal  interest.     .     .     . 

"It  is  admitted  by  a  majority  of 
the  court  that  the  fine  inflicted  by 


AGEEEMENTS    FOE   USURY. 


56T 


Subjecting  the  usurer  to  a  fine,  or  to  loss  of  all  interest  on  the 
tlebt  by  a  separate  prosecution,  does  not  of  itself  render  the  con- 


the  statutes  of  1833  and  1838  for  the 
commission  of  the  offense  of  "usuiy 
does  not  add  to  the  force  of  the 
chiiise  iiioliibitlng  the  reception  of 
unlawful  interest  in  its  effect  upon 
the  contract.  I  go  farther,  and  con- 
tend that  the  nature  of  the  penalty 
affords  evidence  that  the  legislature 
designed  to  continue  the  original 
i[ualification  of  that  clause.  What 
is  the  penalty  ?  A  fine  in  twice  the 
amount  of  the  excess  of  the  sum  re- 
ceived over  legal  intei'est.  The  effect 
given  to  the  prohibition  by  a  major- 
ity of  the  court  leads  to  a  singular 
rt  ;>ult.  It  makes  the  law  punish  the 
intention  to  commit  the  offense  of 
usury  with  a  hundred-fold  the  sever- 
ity that  it  does  the  offense  itself. 
The  lender  of  money  or  a  forbearing 
creditor  contracts  verbally  for  six 
and  a  fourth  per  cent.,  or  in  writing 
for  ten  and  a  fourth  per  cent,  inter- 
est per  annum.  The  boiTower  or 
indulged  debtor  sets  up  the  defense 
of  usuiy.  The  whole  debt  is  lost, 
though  it  amount  to  thousands.  But 
the  borrower  or  debtor  jjrefers  to 
})ay  the  thousands  which  he  owes 
and  the  small  matter  of  unlawful 
interest  for  which  he  contracts.  The 
offense  is  then  consummated  by  the 
creditor;  he  subjects  himself  to  a 
penalty  of  perhaps  one  dollar. 

"  The  view  I  have  taken  of  this 
subject  is  not  unsupported  by  au- 
thority. A  statute  of  Rhode  Island 
forbade  the  taking  of  moi'e  than  six 
per  cent,  per  annum  for  the  loan  of 
money,  etc.,  and  inflicted  a  penalty 
of  one-third  of  the  princijial,  and 
all  the  interest,  for  a  violation  of  the 
act.  The  supreme  court  of  the 
United  States  held  that  the  effect  of 
t  he  prohibition  was  not  to  render  a 
usurious  contract  wholly  void,   but 


that  it  stood  good  for  the  principal^ 
and  was  annulled  ordy  as  to  the  in- 
terest. (DeWolf  v.  Johnson,  10 
Wheat.  367.)  I  do  not  understand 
the  decision  to  be  oven-ulcd  by  the 
case  of  the  Bank  of  the  U.  S.  v, 
Owens,  2  Pet.  527.  They  stand  on 
different  ground.  Tlie  latter  rests 
upon  an  unqualified  prohiWtion  to 
take  more  than  six  per  cent,  inter- 
est; the  former  on  a  prohibition  re- 
strained and  Umited  in  its  effects 
upon  the  contract  by  the  nature  of 
the  penalty.  The  court,  looking  to 
that,  conceived  the  design  of  tho 
legislature  was  not  to  make  the 
whole  contract  void.  It  construed 
one  part  of  the  statute  by  another. 
The  two  decisions  were  pronounced 
by  the  same  judge.  I  am  not  aware 
that  they  have  ever  been  considered 
as  inconsistent  with  each  other  by 
the  court  that  made  them,  or  any  of 
its  members." 

In  this  case  here  referred  to  (De- 
Wolf  V.  Johnson),  Johnson,  J.,  said: 
'•  But  one  of  the  counsel  for  the  ap- 
pellees has  placed  the  objection  to  the 
complainant's  right  to  relief  on  a 
more  general  ground  than  the  receipt 
of  usury,  or  the  avoidance  of  the 
contract  under  statute.  He  insists 
that  it  is  enough  for  this  court  to  re- 
fuse its  aid,  that  the  contract  of  1815 
was  prohibited  by  law,  although  not 
avoided  bj-  law. 

"That  a  court  of  equity  will  not 
lend  its  aid  to  an  illegal  or  uncon- 
scionable bargain  is  true.  But  the 
arg-ument  carries  this  principle 
rather  too  far  as  applied  to  this  case. 
The  law  of  Rhode  Island  certainly 
forbids  the  contract  of  loan  for  a 
greater  interest  than  six  per  cent., 
and  so  far  no  court  would  lend  its 
aid  to  recover  such  interest.      But 


568 


INTEREST. 


tract,  into  wliicli  the  usury  enters,  wholly  void.     Where  it  is  not 
declared  void  for  usury  by  the  statutes,  and  there  are  no  specific 


the  laic  goes  no  farther ;  it  does  not 
forbid  the  contract  of  loan,  nor  pre- 
clude the  recovery  of  thejiriiicipal  un- 
der any  circumstances.  The  sanctions 
of  that  law  are  the  loss  of  the  inter- 
est, and  a  penalty  to  the  amount  of 
the  whole  interest  and  one-third  of 
the  principal,  if  sued  for  within  a 
year.  On  what  principle  could  this 
court  add  another  to  the  penalties 
declared  by  the  law  itself  9 

"  But  the  case  does  not  rest  here. 
The  subsequent  legal  contract  of 
1817  rescued  the  case  from  the 
frowns  of  the  law.  Courts  of  justice 
will  not  shiit  the  door  in  the  face  of 
the  jjenitent;  and  hence  it  has  been 
decided,  in  a  case  very  analogous  to 
the  presei't,  that  although  a  con- 
tract be  in  its  inception  usurious,  a 
subsequent  agreement  to  free  it 
from  the  illegal  incident  shall  make 
it  good.  1  Camp.  1G5,  note;  2  Taunt. 
184." 

In  other  states,  where  usury  has 
not  been  made  a  criminal  offense, 
and  contracts  tainted  with  it  not 
declared  by  statute  to  be  utterly 
void,  they  have  been  held  invalid 
only  to  the  extent  of  the  usury,  or 
at  most  as  to  the  contract  for  interest. 

Alabama:  Saltmarsh  v.  Planters', 
etc.  Bank,  17  Ala.  761.  See  S.  C.  14 
Ala.  668. 

Arkansas:  The  statute  declares  se- 
curities tainted  with  usury  to  be 
void.  Jones  v.  McLean,  18  Ark.  450. 
But  as  to  the  effect  of  visury  in  cases 
not  within  that  statute,  see  Alston  v. 
Brashears,  4  Ark.  423,  where  the 
principal  of  the  usurious  contract 
was  held  recoverable. 

Connecticut:  A  corporation  having 
power  to  loan  money  under  certain 
restrictions,  having  afterwards  taken 
a  note  as  security  on  terms  which 


were,  in  respect  to  interest,  a  viola- 
tion of  the  charter,  it  was  held  in  a 
suit  on  the  note,  u-ith  the  rnoney 
counts,  that  although  there  could  be 
no  recovery  on  the  note,  the  money 
loaned,  with  the  legal  interest,  might 
be  recovered.  Philadelphia  Loan  Co. 
V.  Towner,  13  Conn.  249.  See  Shel- 
don V.  Steere,  5  Conn.  181. 

Georgia:  Contract  void  only  to  the 
extent  of  the  usury.  Dillon  v.  Mc- 
Rae,  40  Ga.  107. 

Iowa:  A  contract  tainted  with 
usury  is  void  only  to  the  extent  of 
the  usury,  and  may  be  enforced  for 
the  residue.  Richards  v.  Marshman. 
2  G.  Greene,  217;  Shuck  v.  Wright, 
1  id.  128;  Hazzard  v.  Atlee,  id.  44; 
Gower  v.  Carter,  3  Iowa,  244;  Ficklin 
V.  Zwart,  10  id.  387;  Drake  v.  Lowry, 
14  id.  125;  Garthe  v.  Cooper,  12  id. 
364;  Wight  v.  Shuck,  Morris  (Iowa), 
425;  Wilson  v.  Dean,  10  Iowa,  432. 

Michigan:  The  effect  of  usury  is 
not  to  avoid  the  contract,  but  to  re- 
duce the  amount;  the  usm-er  is 
entitled  to  recover  the  amount 
actually  loaned  and  legal  interest 
(Thurston  v.  Prentiss,  Walk.  Ch.  529; 
Craig  V.  Butler,  9  Mich.  21),  which  is 
construed  to  be  the  higliest  rate  the 
law  permits  to  be  stipulated  for. 
Smith  V.  Stoddard,  10  Mich.  148. 

Illinois:  The  statute  which  fixes 
the  legal  rate  at  six  per  cent.,  allows 
"  any  person  who  shall  pay  or  deliver 
any  greater  sum  or  value  for  any 
loan,  discount  or  foi'bearance,"  to 
' '  recover  threefold  the  amount  of 
money  so  paid,"  from  the  person  so 
receiving;  but  does  not  invalidate 
the  contract  reserving  an  illegal  rate 
of  interest.  Hansbrough  v.  Peck,  5 
WaU.  497;  McGill  v.  Ware,  5  111.  21: 
Lucas  V.  Spence,  27  id.  15;  Mapps 
V.   Sharpe,    32  id.    13;   Cushman  v. 


AGKEEilENTS  FOE    rS[JEY. 


569 


provisions  for  a  different  adjustment  of  the  amount  which  may 
be  recovered,  the  contract  as  to  interest  is  held  void,  when  it 


Sutphen,  42  id.  256;  Conkliug  v. 
Undcrhill,  4  id,  388;  Ferguson  v. 
Sutphen,  8  id.  547;  Hunter  v.  Hatch, 
45  id.  178. 

Missouri:  Farmers'  and  Tradere' 
Bank  v.  Harrison,  57  Mo.  503.  Lewis, 
J.,  said;  "'Hithei-to,  .  .  .  wlien 
the  defense  (of  usuiy)  was  suc- 
cessful, courts  liave  habitually  ren- 
dered judgment  for  the  principal 
sum  and  ten  per  cent,  interest,  set- 
ting apart  the  interest  to  the  county 
school  fund;"  and  it  was  here  held 
that  the  same  rule  would  apply  to  a 
corporation  restrained  by  its  charter 
from  taking  interest  above  a  speci- 
iied  rate,  in  actions  by  it  upon  con- 
tracts providing  for  a  greater  rate. 

Ohio:  In  Bank  of  Chillicothe  v. 
Swayne,  8  Oljio,  257,  is  a  histoiy  of 
the  legislation  of  that  state  on  the 
subject  of  interest.  The  act  of  1799 
fixed  the  rate  at  six  per  cent.,  but 
inflicted  no  penalty  for  taking  or 
resei-ving  a  greater  rate.  It  did  not 
declare  any  such  contract  void,  nor 
create  any  forfeiture  of  the  principal 
sum,  but  forfeited  the  entire  interest. 
It  expressly  provided  tiiat  the  lender 
might  recover  the  principal,  after 
deducting  payments  on  account  of 
interest. 

The  act  of  1804  fixed  the  rate  at 
six  per  cent,  and  provided  as  to 
persons  taking  more,  that  "such 
persoiLS  shall  forfeit  the  whole 
amount  of  the  debt  on  which  the 
illegal  interest  was  charged  or  re- 
ceived," one-half  to  the  informer 
prosecuting,  and  one-half  to  the 
count}-  treasury;  said  to  be  sub- 
stantially, if  not  literally,  the  same 
as  the  Pennsylvania  statute,  and 
probably  copied  from  it. 

Act  of  1824:  "  All  creditors  shall 
be  entitled  to  receive  interest  on  all 


money,  after  the  same  shall  have 
become  due,  either  on  bond,  bill, 
promissoiy  note,  or  other  instrument 
of  \vriting;  on  contracts  for  money, 
or  property;  on  all  balances  due  on 
settlement  between  parties  thereto: 
on  all  monej'  withheld  by  unreason- 
able and  vexatious  delay  of  i^ay- 
ment;  and  on  all  judgnaents  ob- 
tained from  the  date  thereof;  and  on 
all  deci'ees  obtained  in  any  court  of 
chancery  for  the  payment  of  money, 
from  the  day  specified  in  the  said 
decree  for  the  payment  thereof,  or 
if  no  day  be  specified,  then  from  the 
date  of  the  entering  thereof;  until 
such  debt,  money,  or  property  is 
paid,  at  the  rate  of  six  ])er  cent,  per 
annum,  and  no  moi"e."  Although 
this  statute  provided  only  that  all 
creditors  should  be  entitled  to  inter- 
est at  six  per  cent,  per  annum,  and 
no  more,  "on  all  money,  after  the 
same  shall  become  diie,"  it  was  held 
and  finally  settled,  up  to  1850,  that 
the  rate  could  not  be  raised  by  agree- 
ment before  or  after  due,  by  reason 
of  the  prohibition  in  these  acts. 
Hitchcock,  J.,  said:  "From  1804  to 
the  present  period  (1838),  there  has 
been  no  tiine  in  which  an  individual 
might  not  recover  the  principal  sum 
of  money  loaned,  together  with 
lawful  interest,  notwithstanding  by 
the  terms  of  the  loan  he  was  to  have 
received  a  gi-eater  rate  of  interest." 
In  this  case,  however,  a  like  prohi- 
bition in  the  charter  of  a  bank.  Lim- 
iting its  right  to  charge  interest  to 
a  specified  rate,  was  held  to  render 
a  contract,  exceeding  tliis  limit, 
wholly  void,  on  the  ground  of  its 
want  of  power  to  make  it.  For 
criticism  on  this  distinction,  see  Mc- 
Lean, Assignee,  v.  The  Lafayette 
Bank,  3  McLean,  589;  and  Farmers' 


570 


INTEREST. 


stipulates  for  a  rate  forbidden  by  law ;  tlien  the  principal  sum 
may  be  recovered  with  ordinary  interest.^ 

In  many  cases  the  construction  of  such  statutes  has  been  in- 
fluenced by  antecedent  legislation,  indicating  some  legislative 
l)olicy.  And  the  history  of  legislation  upon  this  subject  shows 
the  progress  and  tendency  of  popular  thought ;  the  gradual  sub- 
sidence and  final  disappearance  of  the  old  prejudice,  against  not 
only  interest  but  usury.  The  common  law  is  flexible  enough  to 
accommodate  itself  by  degrees,  to  deliberate  ]X)pular  convic- 
tions ;  and  it  has  done  so  in  respect  to  interest  and  usury.  Yery 
high  rates  of  stipulated  interest  which  transcend  statutory  hm- 
its,  are  abated  and  brought  to  the  standard  which  the  law  fixes ; 
and  when  no  limit  is  fixed  by  statute,  such  stipulated  rates  are 
sometimes  mitigated  as  the  law  mitigates  penalties ;  but  in  both 
cases  the  excessive  interest  is  treated  as  free  from  the  taint  of 
crime.  Usury,  as  a  crime,  is  rapidly  disappearing  from  the 
statutes  everywhere. 


C'tc.  Bank  v.  Harrison,  supra;  La- 
fayette Benefit  Society  v.  Lewis,  7 
Ohio,  81. 

Pennsylvania:  Usurious  agree- 
ments not  wholly  void.  The  cred- 
itor is  entitled  to  recover  the  sum 
loaned  and  legal  interest.  Wycoff 
V.  Langhead,  2  Dall.  92;  Turner  v. 
Culvert,  12  S.  &  R.  46:  Kuffert  v. 
Gutteuberg  Building  Asso.  30  Pa. 
St.  465;  Philadelphia  &  Sunbury  R. 
R.  Co.  V,  Lewis,  33  Pa.  St.  33.  See 
Evans  v.  Negley,  13  S.  &  R.  218. 

Mississi^jpi:  Taking  or  reservmg 
illegal  interest  is  not  a  punishable 
offense,  nor  does  it  render  the  con- 
tract into  which  it  enters  void;  by 
statute  it  causes  a  forfeiture  of  all  in- 
terest. Wallace  v.  Fouclie,  27  Miss. 
236.  Newman  v.  WiUiams,  29  Miss. 
212;  M'Alister  v.  Jerman,  32  Miss. 
142;  Brown  V.  Nevitt,  27  Miss.  801. 

Kentucky:  An  agreement  to  set 
the  hire  of  a  negro  worth  £22  per 
year  against  the  interest  of  £125,  is 
80  far  void  as  to  let  in  the  borrower 
to  redeem,  but  does  not  vitiate  the 


whole  contract.  Reed  v.  Lansdale, 
Hardin,  6.  But  see  Richardson  v. 
Brown,  3  Bibb,  207;  Wells  v.  Porter, 
5  B.  Mou.  416;  Denham  v.  Stone,  7 
J.  J.  Marsh.  176. 

1  Bunn  V.  Kinney,  15  Ohio  St.  40. 
By  an  act  passed  in  1850,  parties 
were  allowed  in  Ohio  to  "  stipulate 
for  interest,  at  any  rate  not  exceed- 
ing ten  per  cent,  yearly."  In  an 
action  on  a  note  at  four  months, 
which  included  interest  at  nearly 
twenty  per  cent.,  it  was  held  usuri- 
ous and  void  to  the  extent  of  inter- 
est above  six  per  cent,  from  date. 
There  was  no  mention  of  interest  on 
the  face  of  the  note,  except  "after 
due;  "  the  usury  was  included  with 
the  principal.  The  interest  agree- 
ment imphed  by  putting  interest  and 
principal  together,  in  the  amount 
for  which  the  rate  was  given,  was 
enforced  to  the  extent  of  six  per 
cent,  between  the  date  and  the  ma- 
turity; for  if  the  interest  agreement 
were  wholly  void,  no  interest  what- 
ever could  be  recovered  for  that  time. 


AGKEEMEXTS   FOE   USUKT.  571 

CoMruTATiox  UNDER  USURY  STATUTES. —  Under  statutes  where 
the  rates  allowed  by  law  have  been  exceeded  in  the  contract, 
and  the  principal  sum  or  a  part  of  it  remains  collectible,  various 
questions  have  arisen  affecting  the  amount  the  creditor  is  enti- 
tled to  recover.  The  forfeiture  of  interest  or  principal  declared 
by  statute  for  usur}^,  inures  to  the  debtor  and  may  operate  in 
reduction  of  the  debt,  where  such  forfeiture  is  not  exclusively  to 
be  adjudged  in  a  separate  proceeding,  or  to  be  adjudged  in  the 
creditor's  suit  to  a  pubhc  fund. 

The  interest  contract  which  violates  a  statute  is,  of  couree, 
wholly  void.  But  in  many  instances  the  statute  goes  further, 
and,  by  way  of  penalty,  declares  a  forfeiture  of  all  interest,  or  a 
forfeiture  of  double  or  treble  the  amount  of  the  interest  or  usmy, 
and  sometunes  also  of  a  portion  of  the  principal.  If  tlie  forfeits 
ure  is  to  be  worked  out  by  a  criminal  proceeding,  or  a  qui  tain 
action,  it  is  not  to  be  deducted  from  the  vahd  portion  of  the 
debt.i  In  Ohio,  under  the  act  of  1804,  which  provided  for  for- 
feiture of  the  whole  debt,  the  creditor  was  entitled,  neverthe- 
less, to  recover  it  from  the  debtor,  together  with  legal  interest ; 
for  the  statute  excluded  him  from  the  benefit  of  the  forfeitm-e 
by  awarding  one-half  to  the  informer,  and  devoting  the  other 
half  to  the  county  treasmy.  So  the  Iowa  act  of  1839  abated  the 
interest  to  the  legal  standard  between  debtor  and  creditor,  and 
made  the  latter  subject  to  a  forfeiture,  to  the  county,  of  the 
usm-ious  part  of  the  interest,  and  twenty-five  per  cent,  interest 
thereon.^ 

Under  a  statute,  in  Indiana,^  which  hmits  the  rate  of  interest, 
and  provides  that  in  actions  upon  contracts  by  which,  directly 
or  indirectly,  a  higher  rate  is  contracted  for,  taken  or  reserved, 
the  plamtiff,  besides  losing  costs,  shall  only  recover  the  princi- 
pal, deducting  interest  paid.  Kotes  containing  a  promise  of  such 
interest  are,  to  the  extent  of  it,  without  consideration.  Whether 
it  is  openly  expressed,  stealthily  added  to  the  principal,  or  taken 
in  advance  without  reducmg  the  sum  stated  in  the  note,  there  is 
to  the  extent  of  the  interest  a  want  of  consideration.*    Where, 

1  Richards    v.     Marshman,    2    G.  3 1  Stat.  Ind.  by  G.  &  H.  408,  §  4. 

Greene,  217.  4  Musselman    v.    McElheimey,    23 

-Fickliu  V.  Zwart,  10  Iowa,  387;  Ind.  4;  Cross  v.  Wood,  30  Ind.  378; 

Drake  v.  Lawiy,  U  Iowa,  125;  Shel-  Hays  v.  Miller,  12  Ind.  187. 
dou  V.  Mickel,  40  Iowa,  19. 


5  i  3  INTEEEST. 

however,  a  note  bearing  usurious  interest  is  given  for  a  prece- 
dent debt,  the  "principal"  allowed  to  be  recovered  may  includ<^ 
not  only  the  original  principal,  but  such  interest  as  had  legall}' 
accrued  thereon  up  to  the  time  of  giving  the  usurious  note.^ 

The  Massachusetts  act  of  1825,  as  modified  by  the  act  of 
1826,  and  the  Ilhnois  act  of  1845,  are  smiilar  in  respect  to  the 
consequences  to  the  creditor  of  usury,  in  an  action  upon  the 
usurious  contract.  The  creditor  must  pay  costs,  and  forfeit 
threefold  the  amount  of  the  whole  interest  reserved,  discounted 
or  taken ;  he  is  entitled  to  judgment  and  execution  for  the  bal- 
ance only  Avhich  may  remain  due  upon  the  contract  or  assur- 
ance after  deducting  the  forfeiture.  In  the  former  state  this 
statute  has  been  regarded  in  her  own  courts  in  respect  to  these 
and  otlier  accompanying  provisions  as  such  a  mitigation  of  the 
law  previously  in  force,  that  it  is  remedial  rather  than  penal.'- 
So  that  the  debtor  as  plaintiff,  seeking  equitable  relief,  by  bill 
in  equity  to  redeem  by  payment  of  the  amount  equitably  due 
upon  the  usurious  debt,  may  claim  the  same  benefit  of  the  for- 
feiture, and  have  the  debt  reduced  by  it,  as  when  he  is  defend- 
ant at  laAV,  if  the  creditor  asserts  liis  rights  under  the  contract 
by  his  ansAver.^ 

In  Illinois,  however,  there  is  no  provision  for  recovering  back 
usury  voluntarily  paid;  the  right  to  deduct  it  from  the  debt  on 
which  it  was  paid  in  actions  therefor  is  the  only  remedy.^  The 
statutes,  through  successive  changes,  are  and  have  been  penal, 
by  reason  of  the  forfeiture  of  interest;  and  the  debtor  Avho 
seeks  equity  is  required  to  do  equity  by  paying  principal  and 
legal  interest.^  But  while  tlie  transaction  remains  not  settled; 
and  suit  is  br(3Uo-ht  for  the  recoverv  of  the  usurious  debt,  or 
any  part  of  it,  the  debtor  had  a  right  prior  to  1867  to  reduce  it 
by  applying  all  usury  that  he  had  paid.  Where  usmy  had 
been  contracted  for,  the  statute  was  express  that  the  creditor 
was  entitled  to  recover  onh^  the  principal  due,  or  only  the  bal- 

1  Pratt  V.  Walbridge,  16  Ind.  147.  well  v.  Meyer,  35   111.  40;  Lucas  v. 

2 Hart  V.  Goldsmith,  1  Alien,  145;  Spencer,    27    111.    15;    Parmelee    v. 

Gray  v.  Bennett,  3  Met.  523,  Lawrence,   44    111.   405;    Booker   v. 

3  Ibid;  Gerrish  v.  Black,  104  Mass.  Anderson,  35  111.  66. 

400;  Minot   v.  Sawyer,  8  AUen,  78;  sMappsv.  Sliaqie,  32  lU.  13;  Sny- 

Smith  V.  Robinson,  10  Allen,  130,  der  v.  Griswold,  37  111.    216;  Cusli- 

^Reiuback  V.  Crabtree,  77  111.  182;  man  v.   Sutpheu,  43  111.    256.     But 

Saylor  v.  Danielti,  37   III.  331;  Far-  see  Johnson  v.  Thompson,  28111.  3 -)3. 


AGREEMENTS   FOE   USUEY. 


5Y3 


ance  after  deducting  the  forfeiture.^  The  usury  received  was 
considered  as  having  been  extorted  by  the  creditor,  and  should 
be  applied  in  part  payment  of  the  principal  of  the  debt.^ 

Under  these  statutes,  as  under  all  others,  the  parties  may  free 
the  debt  of  the  usurious  taint,  and  rescue  it  from  the  froAvns  of 
the  law.  The  courts  do  not  shut  the  door  in  the  face  of  the 
penitent.^  The  debt  will  usually  be  so  divested  of  the  vice  with 
which  usury  infects  a  contract,  if  the  usury  is  deducted  from 
the  debt,  and  a  new  contract  made  for  the  payment  of  so  much 
of  the  original  principal  alone  as  remains  unpaid,  with  only 
lawful  interest.*  But  in  Illinois,  the  debt,  so  long  as  it  remains 
against  the  same  debtor,  who  has  paid  usury,  would  seem  to  be 
subject  to  a  deduction  for  all  the  usury  paid ;  merely  striking 
out  the  usury  from  the  debt  unpaid,  and  substituting  a  new 
agreement,  or  new  securities,  bearing  lawful  interest,  for  the 
same  debt,  will  not  suffice.* 


1  DriscoU  V.  Tanuock,  76  111.  154; 
Reinback  v.  Crabtree,  77  lU.  182; 
Farwell  v,  Meyer,  35  III.  40. 

2  Id. 

3  De  Wolf  V.  Johnson,  10  Wheat. 
367. 

*Chadboum  v.  Watts,  10  Mass. 
121;  Clark  v.  Phelps,  6  Met.  296; 
Smith  V.  Stoddard,  10  Mich.  148; 
Collins  Iron  Co.  v.  Burkam,  10  Mich. 
283;  Craig  v.  Butler,  9  Mich.  21; 
Burnes  v.  Hedley,  2  Taunt.  184;  Kil- 
bourne  v.  Bradley,  3  Day,  356; 
Postlethwaite  v.  Garret,  3  T.  B. 
Mon.  345;  Fowler  v.  Garret,  3  J.  J. 
Marsh.  682. 

5  In  Mitchell  v.  LjTuan,  77  111.  525, 
a  usury  debt  was,  by  a  new  agree- 
ment, so  freed  of  usury  as  to  subse- 
quently bear  legal  interest;  but  it 
was  the  same  debt,  and  so  divested 
of  its  original  character,  as  to  cut  off 
the  right  to  deduct  the  usury  paid 
while  in  a  usurious  state.  A  person 
borrowed  $3,000,  gave  his  note  for 
that  amount,  payable  in  one  year, 
with  interest  at  ten  per  cent. ;  but  tlie 
lender  retained  out  of    the    .$3,000 


five  per  cent. ,  so  that  the  borrower 
actually  received  more  than  .$2,850. 
At  the  end  of  the  year  all  interest 
was  paid,  and  a  new  note  given  for 
three  thousand  doUars,  with  interest 
at  ten  per  cent.,  with  pei'sonal  se- 
curity, and  the  mortgage  which  had 
been  made  to  secure  the  first  note 
discharged.  In  an  action  upon  the 
second  note,  it  was  held  that,  al- 
though the  same  debt  was  secured  by 
the  second  as  in  the  first  note,  and, 
therefore,  was  subject  to  be  reduced 
by  the  interest  paid  on  the  first 
note;  yet,  the  last  note  was  not 
usurious,  and  the  plaintiff  was  en- 
titled to  interest  upon  it.  This  case 
was  governed  by  the  law  of  1857, 
which  provides  that  if  any  person  or 
corporation  shall  contract  to  receive 
a  greater  rate  of  interest  than  ten 
per  cent,  upon  any  contract,  written 
or  verbal,  such  person  shall  forfeit 
the  whole  of  the  interest,  and  shaU 
be  entitled  onlj"  to  recover  the  prin- 
cipal sum.  the  language  of  this 
statute  is  peculiar.  In  Reinback  v. 
Crabtree,  77  El.  182,  a  loan  of  ^50 


574  INTEEEST. 

In  Michigan,  where  only  the  excess  above  the  highest  rate 
which  may  be  stipulated  for  is  usury,  and  where  only  that 
excess  can  be  abated,  or,  after  having  been  paid,  can  be  de- 
ducted, in  actions  for  the  principal,  this  remedy  of  recoupment 
does  not  exist,  if  the  parties  have  made  new  securities,  which 
include  nothing  but  the  actual  loan,  and  are  not  meant  to  be 
mere  evasions :  ^  nor  if  the  parties  have  adjusted  the  debt  by 
applying  credits  and  payments,  so  that  usury  contained  in  the 
items  adjusted  is  not  contained  as  an  integral  part  of  the  debt 
in  the  final  form.^ 

Under  statutes,  which,  in  substance,  existed  for  many  years  in 
several  states,  punishing  usury  with  a  forfeiture  of  threefold 
the  amount  of  the  whole  interest  reserved  or  taken,  the  interest 
was  computed  for  the  purpose  of  determining  the  amount  of 
the  forfeiture  to  be  deducted,  according  to  the  contract,  up  to 
the  time  the  amount  due  was  ascertained  by  the  verdict.^  And 
in  Massachusetts  threefold  the  amount  of  the  whole  inter- 
est, usurious  as  well  as  lawful,''  and  in  New  Plampshire,  threefold 
the  sum  above  the  lawful  interest,''  was  deducted. 

On  usurious  contracts  in  Iowa  and  Missouri,  the  creditor  is 
entitled  only  to  the  principal ;  ten  per  cent,  is  adjudged  against 
the  debtor  for  certain  public  funds ;  this  is  computed  upon  the 
amount  of  the  contract  up  to  the  rendition  of  the  judgment,^ 
and  in  the  same  way  against  a  surety.'^    Where  partial  payments, 

was  made,  and  a  note  given  calling  iels,  37  IH.  331.     And  the  fact  that 

for  ten  per  cent,  interest:  there  was  new  notes  have,  from  time  to  time, 

also  a  verbal  agreement  made  at  the  been  given,   does    not    change    the 

same  time  to  pay  six  per  cent,  more,  case.     Farwell  v.  Meyer,  35  111.40: 

and     payment    made    pursuant    to  Parmelee  v.   Lawrence,  44  111.  405: 

that  agreement.     This  verbal  agree-  Booker  v,  Anderson,  35  111.  66. 

ment  was  held  to  make  the  transac-  i  Smith  v.  Stoddard,  10  Mich.  148. 

tion    usurious,  and    that,   although  2  Collins  Iron  Co.  v.  Burkam,   10 

usurious  interest  once  paid  cannot  Mich.  283. 

be  recovered  back,  it  is  settled  in  that  s  Parker  v.  Bigelow,   14  Pick.  436. 

state  that  this  rule  does  not  apply  ■iBrigham  v.  Moreau,  7  Pick.  40. 

where  the  transaction  has  not  been  ^  Gibson  v.  Stearns,  3  N.  H.   185. 

settled,  and  the  tenderer  brings  his  See    Rev.    St.    N.    H.    c.    190,    §    3; 

action    for    the    balance.     In    such  Devolt  v.  Atwood,  41  N,  H.  449. 

action  the  borrower  may  defend  by  epicklin  v.  Zwart,   10  Iowa,   387; 

claiming    a     credit    for    vdiatever  Drake  v.  Lowry,  14  Iowa,  125. 

usurious  interest  he  has  paid  in  the  ^  Mcintosh  v.  Likens,  25  Iowa,  555. 
same  transaction.    Taylor  v.  Dan- 


AGREEMENTS   FOE   USURY.  575 

however,  have  been  made,  it  is  held  that  the  computation  should 
be  made  the  same  as  between  debtor  and  creditor ;  ^  and  if  the 
principal  of  a  usurious  debt  has  been  paid,  and  the  action 
is  brought  for  the  usurious  interest,  on  the  defense  of  usury,  the 
judgment  for  tlie  penalty  to  the  school  fund  cannot  be  rendered.* 

Where  usury  does  not  wholly  invalidate  the  debtor's  contract 
to  pay  the  principal,  and  it  is  subject  to  be  reduced  by  deduction 
of  the  usury,  or  interest  joaid  or  reserved,  whether  single  or 
multiplied,  the  benefit  of  that  defense  is  of  course  confined  to 
actions  upon  the  usurious  contract,  or  in  some  form  for  the 
collection  of  the  usurious  debt.  The  defense  is  available  in 
suits  for  the  foreclosure  of  mortgages,  as  well  as  in  personal 
actions  upon  the  contract.^  The  usurious  debt,  originally  a  gross 
sum.  or  made  so  by  the  consolidation  of  a  series  of  transactions, 
is  often  divided  to  be  paid  by  instalments,  secured  in  one  instru- 
ment, or  in  several.  When  so  divided,  and  a  part  only  is  sued 
for,  tlie  residue  being  either  paid,  or  for  other  reasons  is  not  in 
issue  —  perhaps  belonging  to  another  party  —  may  the  entire 
deduction  to  which  the  debtor  is  entitled  for  usury,  be  made 
from  the  portion  sued  for  ?  In  Maine,  the  debtor  is  entitled  to 
an  abatement  of  the  usurious  interest,  and  to  have  such  usury 
as  he  has  paid  on  a  debt  deducted  from  the  collectible  portion 
when  it  is  sued  for.^  In  that  state,  where  a  usurious  debt  is 
divided  and  separate  notes  given  for  it,  each  note  is  held  to  con- 
tain the  same  proportion  of  the  usury  as  of  the  entire  debt ;  and 
that  it  is  subject  to  abatement  by  application  of  a  like  propor- 
tion only  of  any  usurious  interest  that  had  been  paid  on  the 
whole  debt.^ 

In  Xew  Hampshire,  usury  was  for  a  long  time  punished  by 
obliging  the  creditor  to  lose  three  times  the  sum  above  the 
lawful  interest  taken,  to  be  deducted  from  the  sum  found  law- 
fully due.  Where  a  usurious  debt  was  secm^ed  by  two  notes, 
and  one  had  been  paid,  it  was  held  in  an  action  upon  the  other 
that  the  payment  of  one  could  not  affect  the  defendant's  right 

1  Sheldon  v.   Mickel,  4   Iowa,   19;         4  Loud  v,  Morrell,  45  Me.  516. 
Smith  V.  Cooper,  9  Iowa,  376.  5  pierce  v.  Conant,  25  Me.  33;  Dar- 

2  Easley  v.  Brand,  IS  Iowa,  133.  ling  v.  March,  23  Me.   184;  Ticonic 
3Minot  V.   Sawyer,   8  Alien,    78;     Bank  v.  Johnson,  31  Me.  414. 

t'owell  V.  Woodruff,  8  Conn.  35. 


O  ( O  mTEKEST. 

to  the  deduction  allowed  by  the  statute,  any  more  than  if  the 
whole  sum  had  been  put  into  one  note,  and  the  amount  paid 
had  been  indorsed  upon  it ;  that  the  balance  still  due  upon  the 
last  note  is  the  balance  of  the  money  upon  which  the  usurious 
interest  was  secured  and  paid ;  and  to  subject  it  only  to  a  pro- 
portionate abatement  would  be  an  evasion  of  the  spirit  and 
letter  of  the  statute.^ 

Section  4. 

AGREEMENTS  FOR  MORE  THAN  THE  LEGAL  RATE  AFTER  MATURITY. 

Not  usury,  hut  penalty  —  When  debtor  relieved   in  Illinois. 

!NoT  USURY,  BUT  PENALTY. —  Tliis  poiut  has  been,  to  considerable 
extent,  touched  upon  in  the  preceding  pages,  but  attention  has 
not  been  called  to  the  distinct  question  of  the  effect  of  stipulat- 
ing for  rates  of  interest  to  be  paid  after  maturity  exceeding 
those  allowed  by  law.  The  question  may  practically  arise 
under  statutes  regulating  interest  in  two  ways ;  first,  by  provid- 
ing that  the  interest  of  money  shall  be  a  given  rate,  and  no 
more;  second,  by  prescribing  a  general  rate,  and  that  parties 
may  agree  on  any  other  not  exceeding  a  specified  higher  rate. 
Reserving  a  greater  sum  for  interest  before  maturity  than  the 
rate  fixed  by  statute,  or  than  is  authorized  to  be  stipulated  for, 
renders  the  contract  usurious.  But  agreeing  for  the  prohibited 
rates  to  be  computed  after  maturity,  is  not  usury.^ 

The  reason  given  is,  that  the  debtor  can  relieve  himself  by  at 
once  paying  the  debt ;  he  is  no  longer  bound  to  keep  the  money 
that  it  may  earn  interest  for  the  profit  of  the  creditor.     By 

'  Farr  v.  Chandler,  51  N.  H.  545.  Fisher  v.   Otis,   3    Piu.    (Wis.)    78 

2LaAvi-ence  v.   Cowles,  13  111.  577;  Wight  v.  Shuck,  Morris  (Iowa),  425 

Gould  V.  Bishop  Hill  Colony,  35  111.  Shuck  v.  Wight,  1  G.   Greene,  128 

324;    Davis  v.    Rider,    53    111.    416;  Fisher  v.    Anderson,   25    Iowa,    28 

Witherow  v.  Briggs,  67  111.  96;  Wil-  Jones    v.    Berrj-hill,  25   Iowa,    289 

day  V.  Morrison,  66  111.  533;  Cutler  Rogers  v.  Sample,  33  Miss.  310;  Rob- 

V.  How,  8  Mass.  257;  Call  v.  Scott,  4  erts    v.    Trenayne,    Cro.    Jac.    507; 

Call,  402;  Wilson  v.  Dean,  10  Iowa,  Fleyer  v.    Edwards,    1    Cowp.    113; 


433;  Gower  v.  Carter,  3  Iowa,  244 
Moore  v.  Hilton,  1  Dev.  Eq.  333 
Campbell  v.  Shields,  6  Leigh,  517 
Gambrill  v.  Doe,  8  Blackford,  140 


Wells  V.  Girling,  1  Brod.  &  Bing. 
447;  Bac.  Abr.  title  Usury,  letter  c; 
Canton  v.  Shaw,  2  Har.  &  G.  13. 


AGREEMENTS,  ABOVE  LEGAL  KATES  —  AFTEK  MATUKnT.   577 

paying  the  debt  the  debtor  can  prevent  its  increase  by  the 
gradual  accumulation  of  interest.  This  reasoning  overlooks  the 
possibility  that  for  want  of  money  the  debtor  will  be  unable  to 
avail  himself  of  this  rehef;  this  is  the  very  inability  with  its 
distressing  consequences  from  which  it  is  deemed  humane  and 
politic  by  statutes  against  usury  to  shield  the  debtor.  The  right 
to  stop  interest  by  paying  the  principal  without  the  ability  to 
make  such  payment,  is  just  equivalent  to  the  right  a  person  has 
to  borrow  money  when  no  person  having  the  money  will  lend 
to  him.  If  the  creditor's  power  over  the  necessitous,  to  extort 
oppressive  terms  at  the  lending,  is  deserving  of  legal  check, 
Avhy  limit  that  restriction  to  the  period  of  credit?  High  rates 
•of  interest,  to  commence  at  the  end  of  that  period,  are  as  likely 
to  be  oppressive  as  when  applied  before,  and  more  likely  to  be 
assented  to.  But  the  further  reason  is  mven,  that  hif^-her  than 
legal  rates  agreed  to  for  interest  after  maturity  are  in  the  nature 
of  a  penalty,  and  therefore  only  actual  damages  can  be  recov- 
ered under  it ;  and  as  these  damages  are  for  non-payment  of 
money,  they  are  measured  by  the  legal  rate  of  interest.  The 
doctrine  thus  limited  is  correctly  stated  thus :  An  agreement  to 
pay  more  than  legal  interest  by  way  of  penalty  for  not  paying 
the  debt,  is  not  usurious;  because  the  debtor  may  at  any  time 
relieve  himself  by  paying  the  debt  with  lawful  interest,  if  he  is 
able  to  do  so ;  and  even  if  he  incurs  the  penalt}^,  this  may  be  re- 
duced to  the  actual  debt  reckoned  in  the  same  manner.^  No 
agreement  is  valid  for  a  greater  rate  of  interest  to  be  paid  after 
maturity,  than  maybe  legally  stipulated  to  be  paid  before.  This 
rule  is  founded  upon  principle  and  authority.  Parties  may 
^contract  absolutely  or  conditionally,  as  we  have  seen,  for  any 
rate  within  a  statute  fixing  interest  limits.  Where  a  rate  is 
agreed  to  be  paid  before  maturity  which  is  above  those  limits, 
it  is  usurious;  not  collectible;  if  such  a  rate  is  agreed  to  be 
paid  after  maturity,  it  is  in  the  nature  of  a  penalty,  and  has 
Tio  effect ;  then  the  legal  rate  will  govern  as  though  no  agree- 
ment had  been  made.- 

13  Parsons  on  Cont.  116,  Wilson  v.  Dean,  10  Iowa,  432;  Cut- 

2  Shuck  V.   Wight,  1  G.    Greene,  ler  v.  How,  8  Mass.  257;  Conrad  v. 

128;  Wight  v.  Shuck,  Morris  (Iowa),  Gibbon,  29  Iowa,  120;  Clark  v.  Kay, 

425;  Gower  v.  Carter,  3  Iowa,  244;  26  Ga.  403;  Claypool  v.  Sturgess,  10 

Vol.  1  —  37 


578 


INTEKEST. 


When  debtor  relieved  from  it  in  Illinois. — In  Illinois,  bow- 
ever,  this  rule  does  not  appear  to  be  recognized.     A  remedy  in 


Ohio  St.  44;  Taul  v.  Everet,  4  J.  J. 
Marsh.  10;  Jackson  v.  Shawl,  29  Cal. 
267;  Burnheisel  v.  Firman,  22  Wall. 
170;  Bvmn  v.  Kinney,  15  Ohio  St.  40; 
Caton  V.  Shaw,  2  Har.  &  G.  13;  Sex- 
ton V.  Mui-dock,  36  Iowa,  516;  Pyke 
V.  Clark,  3  B.  Mon.  265;  Brockway 
V.  Clark,  6  Ohio,  45.  In  Gower  v. 
Carter,  3  Iowa,  244,  the  action  was 
brought  on  an  agreement  to  pay  a 
sum  of  money  by  a  certain  day,  and 
more  than  legal  interest  afterwards, 
by  way  of  penalty,  if  the  debt  be 
not  punctually  paid.  Stockton,  J., 
said:  "The  defendants'  agreement 
to  pay  two  and  a  half  per  centum 
per  month,  in  default  of  payment  of 
the  promissory  notes  at  maturity,  is 
not  essentially  different  from  an 
agreement  to  pay  a  gross  sum  as 
such  penalty  Nor  do  we  perceive 
that  either  of  the  notes  sued  on  is 
essentially  different  from  a  penal 
bond  by  which  the  obligor  binds 
himself  to  pay  the  obligee  a  certain 
sum,  with  the  condition  appended, 
by  which  the  first  obligation  is  to  be 
void  on  the  payment  of  the  lesser 
sum  to  the  obligee,  by  a  day  certain. 
The  real  nature  and  essence  of  the 
agreement  is  always  disclosed  by  the 
condition  of  the  bond  or  under- 
taking. 

"  In  the  present  case,  the  condition 
of  the  contract  was  to  pay  the  note, 
wuth  interest,  by  a  certain  day.  If 
not  paid  punctually  when  due,  the 
defendants  promise  to  pay  as  a  pen- 
alty for  the  default  two  and  a  half 
per  centum  per  month  from  matvir- 
ity  until  paid.  Are  the  plaintiffs  en- 
titled to  enforce  this  penalty  against 
the  defendants,  on  their  failure  to 
pay  the  notes  at  their  maturity  ?  We 
must  first  remark,  however,  that  on 
examination  of  the  petition,  we  find 


that  it  does  not  set  forth  any 
breaches  on  the  part  of  the  defend- 
ants, as  on  a  penal  bond.  It  does- 
not  aver  what  amount  is  claimed  by 
plaintiffs  as  due  from  defendants, 
nor  does  it  pray  judgment  for  the 
amount  of  the  penalty.  We  refer 
to  this  in  connection  with  the  ques- 
tion made  by  tlie  defendants  in  their 
assignment  of  exTors,  viz.:  whether 
the  court  should  have  rendered  judg- 
ment for  the  penalty  of  two  and  a 
half  per  centum  per  month,  and  if 
not,  for  what  amount  shovild  judg- 
ment have  been  rendered  ? 

"The  consideration  of  this  question 
renders  it  advisable  to  inquire  to 
some  extent  into  the  nature  and  his- 
tory of  actions  for  penalties  sued  on 
penal  obligations.  In  an  action  of 
debt  on  a  penal  bond  for  condition 
broken,  the  amount  wliich  the 
plaintiff  was  entitled  to  recover  was- 
originally  the  penalty.  The  action 
could  not  be  relieved  against  by  pay- 
ment or  tender.  This  severe  rule  of 
the  common  law  was  only  mitigated 
by  the  practice  of  the  courts  of 
chancery,  which  interposed  and 
would  not  allow  the  creditor  to  take 
more  than  in  conscience  he  ought. 
Sedgw.  on  Dam.  393.  From  the  time 
that  it  became  settled  in  equity  that 
the  condition  of  the  bond  was  the 
agreement  of  the  parties,  the  obligor 
was  relieved  from  the  penalty. 
Very  soon  arose  the  practice,  en- 
forced by  legislation,  requiring  the 
plaintiff  to  assign  breaches  in  his 
declaration,  and  the  jury  on  the 
trial  assessed  such  damages  for  the 
breaches  assigned  as  the  plaintiff  on 
the  trial  might  prove.  And  it  is  en- 
acted by  the  code  of  Iowa,  section 
1818,  that  in  actions  on  penal  bonds, 
the    petition    must    set    forth    the 


AGREEMENTS,  ABOVE    LEGAL   RATES  —  AFTER   MATURITY.       579 


equity  has  sometimes  been  al)stractly  acknowledged  as  one  that 
might  be  available  in  case  of  an  interest  contract  of  an  oppress- 


breaches,  and  the  judgment  ren- 
dered thereon  must  be  for  the  actual 
damages  only.  It  may  therefore  be 
laid  down  as  a  settled  rule,  that  no 
other  sum  can  now  be  recovered  un- 
der a  penalty  than  that  which  shall 
compensate  the  plaintiff  for  his 
actual  loss.  The  penalty  is  in  no 
sense  the  measure  of  compensation; 
and  the  plaintiff  must  show  the  par- 
ticular injury  of  which  he  com- 
plains, and  have  his  damages  as- 
sessed by  a  jury.  Such  damages, 
it  is  f  urtlier  held,  are  not  necessarily 
nominal,  and  the  jury  may  give 
substantial  damages  if  they  see  fit. 
Sedgw.  on  Dam.  396,  397 

"  In  the  case  of  a  loan  of  money, 
although  in  point  of  fact  the  creditor 
may  suffer  the  most  serious  incon- 
venience for  the  want  of  punctual 
payment  of  his  debt,  as  happens 
every  day,  and  a  subsequent  pay- 
ment of  principal  and  interest  may 
be  a  very  inadequate  compensation 
for  the  original  disappointment,  it 
may  be  stated  as  a  general  rule  that 
a  promise  of  paying  a  penalty  be- 
yond the  amount  of  legal  interest 
cannot  be  enforced.  Pothier  on 
Obligations,  Appendix,  87.  Where 
the  penalty  lias  been  incurred,  the 
ends  of  justice  may  be  arrived  at  by 
reducing  the  penalty  to  the  actual 
debt.  2  Parsons  on  Contracts,  393. 
The  case  of  Groves  v.  Groves,  1 
Washington,  1,  was  an  agreement 
for  the  payment  of  a  debt  at  a  cer- 
tain day,  and,  if  not  paid  punctually, 
then  for  the  payment  of  a  larger 
sum;  the  coui-t  held  that  a  contract 
to  pay  a  larger  sum  at  a  future  day 
was  not  usurious,  and  that  the  in- 
creased sum  should  be  considered  as 
a  penalty  against  which  equity 
ought  to  relieve,  on  compensation 


being  made.  So  in  Brockway  v. 
Clark,  6  Ohio,  45,  the  supreme  court 
of  Ohio  held  that  where  a  money- 
lender takes  from  a  borrower  an 
obligation  for  a  greater  amount  than 
the  money  lent,  and  stipulated  in- 
terest, with  an  undertaking  on  his 
part  to  receive  a  less  sum  in  dis- 
charge of  the  obligation,  if  punct- 
uallj'  paid,  equity  may  relieve 
against  the  excess  as  a  penalty,  on 
the  same  principle  upon  which 
parties  are  ordinarily  relieved  from 
penalties.  The  same  was  granted  at 
law  in  Massachusetts  in  the  case  of 
Cutler  V.  How,  8  Mass.  257.  After 
a  verdict  by  the  jury,  for  the 
plaintiff,  assessing  the  damages,  the 
court  directed  a  certain  amount  of 
the  penalty,  which  it  deemed  op- 
pressive, to  be  deducted  from  the 
amount  of  the  verdict,  and  judg- 
ment was  entered  on  the  verdict  as 
amended. 

"  In  Shuck  v.  Wight,  1  G,  Greene, 
128,  the  note  was  for  the  sum  of 
$300,  payable  two  years  after  date, 
and  to  bear  interest  after  maturity, 
if  not  paid,  at  the  rate  of  fifty  per 
centum  per  annum.  Suit  being 
brought  by  the  holder  of  the  note 
to  foreclose  a  mortgage,  given  to  se- 
cure its  payment,  the  petition  prayed 
judgment  for  the  amount  of  the 
note,  with  such  interest  as  the  court 
should  deem  just  and  proper.  Judg- 
ment was  given  for  the  plaintiff  for 
the  amount  of  the  note  and  interest 
at  six  per  centum  per  annum.  This 
judgment  was  affirmed  by  the  su- 
preme court  (1  G.  Greene,  128),  and 
we  may  consider  that  the  principle 
was  thereby  settled,  so  far  as  tlie 
authority  of  this  court  could  settle 
it,  that  the  plaintiff  was  not  entitled 
to  judgment  for  the  penalty  of  fifty 


580 


ESTTEKEST. 


ive  character.^  "While  the  statute  hmited  the  rate  which  might 
"be  stipulated  for  to  ten  per  cent,  per  annum,  a  note  was  given, 
to  which  was  added  this  clause:  "and  if  the  same  is-  not  paid 
when  due,  to  pay  her  twenty-four  per  cent,  interest  thereon 
from  the  time  the  same  is  due  until  paid,"  The  supreme  court 
held  as  it  had  done  before,  and  as  it  did  repeatedly  afterwards, 
that  such  agreements  for  interest  are  not  usurious ;  unless  given 
on  such  short  time  as  to  induce  the  behef  that  they  were 
designed  to  evade  the  statute  against  usury.^  Such  contracts 
do  not  come  within  the  rule  that  a  greater  sum  is  a  penalty 
when  it  is  made  payable  on  failm^e  to  pay  a  smaller  sum. 
Where  that  rule  applies,  the  greater  sum  becomes  due  at  once, 


per  centum  per  annum,  but  for  six 
per  cent.  only. 

"  In  another  class  of  cases,  where 
the  parties  have  agreed  upon  a  sum 
certain  as  the  measure  of  damages, 
in  order,  as  far  as  possible,  to  avoid 
all  future  questions  as  to  the  amount 
of  damages  which  may  result  from 
the  violation  of  the  contract;  and 
where  a  definite  sum  was  named,  as 
settled  and  liquidated,  if  the  con- 
struction of  the  phraseology  would 
work  opi:)ression,  the  use  of  the 
term  *  liquidated  damages '  did  not 
prevent  the  courts  from  inquiring 
into  the  actual  injury  sustained,  and 
doing  justice  between  the  parties. 
No  damages  for  the  mere  non-pay- 
ment of  money  can  ever  be  so  liqui- 
dated between  the  parties  as  to 
evade  the  provisions  of  the  law 
which  fix  the  rate  of  interest.  Sedgw. 
on  Dam.  400.  In  Orr  v.  Churchill, 
1  H.  Black.  232,  Lord  Loughborough 
said:  '  There  can  only  be  an  agree- 
ment for  liquidated  damages  where 
there  is  an  agreement  for  the  per- 
formance of  certain  acts,  the  not 
doing  of  which  would  be  injurious 
to  one  of  the  parties;  or  to  guard 
against  the  performance  of  acts, 
which,  if  done,  would  also  be  inju- 
rious.   But  in  cases  Uke  the  present, 


the  law  having  fixed,  by  positive 
rules,  the  rate  of  interest,  has 
bounded  the  measure  of  damages.' 
In  the  case  of  Gray  v.  Crosby,  18 
John.  226,  where  a  party  covenanted, 
on  a  certain  contingency,  to  pay  to 
another  a  sum  of  money,  with  a 
proviso  that,  if  he  failed  or  refused, 
then  he  wovdd  pay  a  larger  sum  as 
liquidated  damages,  the  supreme 
court  of  New  York  say:  Such  facts 
constitute  no  right  to  recover  beyond 
the  money  actually  due.  Liquidated 
damages  are  not  applicable  to  such 
a  case.  If  they  were,  they  might 
afford  a  secure  protection  for  usury, 
and  countenance  oppression  under 
the  forms  of  law.' " 

1  Gould  V.  Bishop  HiU  Colony,  35 
111.  824. 

2  Ibid;  Lawrence  v.  Cowles,  13  111. 
577;  Smith  v.  Whitaker,  28  111.  367; 
Bishop  Hill  Colony  v.  Egerton,  26 
111.  54;  Davis  v.  Rider,  53  111.  416; 
Wilday  v.  Morrison,  66  111.  532; 
Witherow  v.  Briggs,  67  111.  96;  Bane 
V  Gridley,  id.  388.  In  a  recent 
case,  in  which  thirty  .per  cent,  per 
annum  was  stipulated  to  be  paid 
after  maturity,  the  court,  referring 
to  the  previous  decisions,  said  the 
court  could  hardly  have  decided  all 
these  cases  without  deciding  both 


INTEKEST   AS   COMPENSATION.  581 

in  case  of  non-payment  at  the  day,  and  is  strictly  a  penalty 
from  which,  a  court  of  chancery  will  relieve  on  slight 
grounds.  The  conrts  of  that  state,  in  common  with  other 
courts,  pronounce  such  excessive  interest  a  penalty  to  ensure 
punctuality,  but  it  is  not  there  strictly  a  penalty  against  which 
courts  of  chancery  will  relieve  on  slight  gi'ounds.  On  the 
contrary,  these  penalties  are  enforced  for  the  fuU  amount 
agreed  to  be  paid.^ 

Section  5. 

INTEREST  AS    COMPENSATION. 

By  tacit  agreement  on  accounts —  Quantum  meruit  claim  for  —  On  money 
lent  and  on  money  paid — Betiveen  vendor  and  purchaser  —  Interest 
allowed  from  time  when  money  ought  to  he  paid  —  Not  on  statutory 
penalties —  When  on  the  penalty  of  a  bond  —  Allowed  on  judgments  — 
Lost  on  revival  of  judgment  by  scire  facias  —  Alloiced  on  sums  due  for 
rent  —  On  annuities  and  legacies  —  Not  allowed  on  unliquidated  de- 
mands—  When  allowed  on  money  had  and  received —  Wlien  allowed 
on  accounts  —  When  demand  of  payment  necessary  —  When  allowed 
against  agents  and  trustees  —  Alloiced  on  moneys  obtained  by  extortion 
or  fraud  —  Interest  on  damages  in  actions  for  tort. 

Under  previous  heads  we  have  discussed  interest  resulting 
from  or  connected  Avith  interest  agreements.  It  is  now  pro- 
posed to  consider  the  subject  in  a  broader  sense : —  the  habihty 
for  interest  where  there  is  no  actual  agreement  to  pay  it,  not 
only  in  connection  with  obligations  ex  contractu  to  pay  the 
principal,  but  also  where  the  principal  habihty  is  founded  in  tort. 

A  liability  for  interest  may  result  from  a  tacit  agreement  to 
pay  it ;  and  the  law  in  many  instances  implies  a  duty  to  pay  it 
on  the  prmciple  of  qnantwn  meruit.  It  is  also  invariably 
chargeable  as  damages  in  cases  of  default  in  the  payment  of  a 
liquidated  debt ;  and  upon  damages  for  violation  of  contracts, 
where  such  damages  are  determinable  by  some  certain  stand- 
ard.    In  cases  of  tort,  interest  is  allowed  not  only  upon  money, 

of  these  questions,  namely,  whether  alty  in  the  sense  in  which  a  gross 

such  interest  was  of  the  nature  of  a  sum  is  a  penalty,  when  it  is  to  be 

penalty,  or  usurious,  and  evidently  paid  at  a  particular  day.    Id. 

did  not  regard  a  merely  increased  i  Downey    v.    Beach,   78    111.    53; 

rate  of  interest  in  consequence  of  Reeves  v.  Stipp,  91  111.  609. 
non-payment  at  maturity,  as  a  pen- 


582  INTEEEST- 

but  the  value  of  property,  wrongfully  taken  or  converted,  or 
lost  by  culpable  neglect.  It  is  recoverable,  also,  upon  pecun- 
iary elements  of  damage,  although  the  principal  injury  may 
involve  a  claim  for  unliquidated  damages. 

Tacit  agreement  to  tay  interest  on  accounts. —  As  will 
be  presently  seen,  more  at  large,  interest  is  not  allowed  upon, 
open  running  accounts.  Where  there  is  no  delinite  credit,  the 
parties  deal  upon  the  assumption, — by  the  debtor,  that  although 
he  has  no  claim  to  forbearance,  yet  payment  will  be  requested ; 
and,  on  the  part  of  the  creditor,  that  the  account  has  no  time 
to  run,  and  will  be  paid  on  demand,  tience  interest  is  not 
payable  before  demand,  for  the  same  reason  that  it  is  never 
payable,  except  by  agreement,  while  the  debtor  has  a  right  to 
retain  the  money ;  in  such  cases,  it  is  not  payable  on  the  ground 
of  default,  until  the  creditor  has  put  the  debtor  under  a  present 
duty  to  pay  by  rendering  the  account  or  requesting  payment. 

Where,  by  the  custom  of  a  place,  or  of  a  trade,  or  of  a  par- 
ticular dealer,  moneys  owing  on  account  are  to  carry  interest 
after  a  certain  period,  whether  demanded  or  not,  persons  who 
contract  debts  at  that  place,  in  that  trade,  or  to  that  dealer, 
with  notice  of  that  custom  at  the  time  of  contracting  the 
debt,  tacitly  acquiesce  in  the  custom,  and  by  a  natural  imphcation, 
tacitly  agree  to  the  liability  which  it  imposes.^ 

1  Hammel  v.  Brown,  24  Pa.  St.  310;  In  Meech  v.  Smith,  7  Wend.  315, 

Watt  V.  Iloch,  25  Pa.  St.  41 1 ;  Newell  which  was  an  action  upon  the  ac- 

V.  Griswold,  6  John.  45;  Barclay  v.  count   of    a   forwarding   merchant, 

Kennedy,  8  Wash.  C.  C.  350;  Loring  on  the  trial  the  plaintiff  proved  an 

V.  Gurney,  5  Pick.  15;  Raymond  v.  account  of  about  .$34  for  the  trans- 

Isham,  8  Vt.  263;  Consequa  v.  Fan-  portation  of  a  quantity  of  flour  by 

ning,    3  John.    Ch.    587;    Wood    v.  the  plaintiff  for  the  defendant  from 

Smith,  23  Vt.  706;  Esterly  v.  Cole,  1  R.   to  N.  Y.  in  1827.     The  plaintiff 

Barb.  235;  S.  C.  3  N.  Y.  502;  Knight  claimed  interest  on  his  account,  and 

V.    Mitchell,    3  Brev.   561;   Wills  v.  offered  to  prove  the  universal  custom 

Brown,  2  Pcnn.  {N.  J.  L.)  411;  Dick-  of  forwarding  merchants  to  charge 

son  V.  Surgines,  3  Brev.  491;  Black  interest    upon  svich  accounts;    that 

V.  Reybold,  3  Harr.  (Del.)  528;  Hig-  such  custom  was  well  known  to  the 

gins  V.  Sargent,  2  B.  &  C.  349;  Mc-  defendant  when  he  conti'acted  with 

AUister  v.  Reab,  4  Wend.  483;  S.  C.  the  plaintiff,  and  that  he  had  settled 

Sid.  109;  Veiths  v.  Hagge,  8  Iowa,  several  accounts  of  a  similar  descrip- 

163;   Knox  v.   Jones,    2    Dall.    193;  tion  with  the   plaintiff,    in    wliich 

Farmers',  etc.  Co.  v.  Mann,  4  Robt.  interest   was   charged  without    ob- 

356;  McKnight  V.  Duulop,  4  Barb.  36.  jection.     Exception  was  taken  upon. 


mTEKEST   AS    COMPENSATION. 


5S3 


This  interest  is  part  of  the  debt,  a  compensation  for  forbear- 
ance, not  damages  for  withholding  money  due.  A  tacit  agree- 
ment is  of  the  same  nature  and  force  as  an  actual  agreement ; 
but  not  being  expressed  by  the  parties,  it  is  of  course  to  be  es- 
tablished by  circumstances.     Contracting  a  debt,  with  a  custom 


the  rejection  of  this  testimony. 
Savage,  C.  J.,  said:  '"On  the  ques- 
tion of  interest,  I  think  the  court 
erred.  Interest  is  always  properly 
chargeable  where  there  is  either  an 
express  or  implied  agreement  to  pay 
it.  The  facts  offered  to  be  proved 
are  sufficient,  in  my  judgment,  to 
authorize  a  jurj-  to  infer  that  tliere 
was  an  agreement  to  pay  interest;  it 
"was  the  uniform  custom  of  all  those 
engaged  in  the  same  business  to 
charge  interest;  it  was  the  custom 
of  the  plaintiff  to  charge  it;  he  had 
-charged  it  in  former  accounts  against 
the  defendant;  and  it  had  been  paid 
without  objection,  before  the  con- 
tract was  made  on  which  this  suit  is 
brought.  In  the  case  of  Trotter  v. 
Grant,  2  Wend.  415,  there  was  no 
■evidence  that  the  defendant  knew 
the  plaintiff's  custom  to  charge  in- 
"terest,  nor  had  he  ever  settled  an 
account  in  which  interest  was 
•charged;  there  wei-e  in  that  case  no 
sufficient  facts  from  which  an  agree- 
ment to  pay  interest  could  be  im- 
plied, and,  the  account  being  un- 
liquidated, interest  could  not  be 
recovered."  See  Liotard  v.  Graves, 
3Cai.  226:  Williams  v.  Craig,  1  Ball. 
313;  Dodge  v.  Perkins,  9  Pick.  36-8; 
Rayburn  v.  Day,  27  111.  46;  Harrison 
V.  Handley,  1  Bibb,  443;  Von  Hemert 
V.  Porter,  11  Met.  210;  Warren  v. 
'Tyler,  81  111.  15. 

In  Koons  v.  Miller,  3  W.  &  S.  271, 
the  court  say:  "The  practice  of  the 
merchants  of  Pliiladelphia  to  charge 
interest  ou  their  accounts  after  six 
months,  has  endured  more  than  half 
a  centurv;  and  it  is  so  universal  that 


their  customers  deal  with  tliem 
avowedly  on  the  basis  of  it.  It  is  so 
notorious  as  to  be  recognized  abroad ; 
as  may  be  seen  in  Bospham  v.  Pol- 
lock, 1  McLean,  411,  in  which  the 
circuit  court  of  the  United  States 
for  the  district  of  Indiana,  left  its 
existence,  as  the  existence  of  any 
foreign  law  must  be  left,  to  the  jury. 
Its  existence  is  so  notorious  at  home, 
however,  that  we  are  bound  to  take 
notice  of  it  as  part  of  the  law.  That 
it  has  not  been  sooner  recognized  by 
judicial  decision,  has  arisen  from 
the  fact  that  it  has  not  before  been 
thought  a  subject  of  dispute;  but  the 
principle  is  as  weU  known  and  ob- 
served in  the  collection  of  mer- 
chants' debts,  as  any  other  custom 
peculiar  to  the  state." 

In  Fisher  v.  Sargent,  10  Cush.  250, 
assumpsit  was  brought  for  goods 
sold  and  delivered.  The  plaintiffs 
were  traders  in  Boston,  and  at  the 
trial  offered  testimony  tending  to 
prove  a  custom  among  merchants 
and  traders  there  to  charge  interest 
on  their  accounts,  after  a  credit  of 
four  or  six  months;  but  offered  no 
evidence  as  to  the  credit  given  in 
this  particular  transaction,  or  that 
payment  had  been  demanded.  The 
jury  were  instructed  that  they 
might,  upon  this  evidence,  allow  in- 
terest after  six  months  —  to  which 
exceptions  were  taken.  These  were 
oveiTuled.  Bigelow,  J.,  said:  "Or- 
dinarily, in  tlie  absence  of  any  evi- 
dence of  visage,  or  of  a  special  agree- 
ment between  tlie  parties,  interest 
cannot  be  recovered  upon  an  open 
running  account,  for  goods  sold  and 


CS4 


mXEKEST. 


in  view,  which  contemplates  the  payment  of  interest  before 
steps  have  been  taken  to  liquidate  an  account  or  to  obtain  pay- 
ment, affords  one  example  of  such  interest.  Dealing  with 
knowledge  of  such  a  custom,  making  no  objection  to  it,  or  pro- 
ceeding after  objection  without  any  waiver  of  the  custom  by 


delivered,  when  there  was  no  specific 
term  of  credit  agreed  on  between 
the  parties.  Tliis  is  the  general  rule; 
but  it  may  be  varied  by  proof  of  the 
usage  of  a  particular  trade  or  busi- 
ness, to  charge  interest  after  the  ex- 
piration of  a  certain  period.  In  such 
cases,  parties  having  knowledge  of 
the  usage  are  presumed  to  contract 
with  reference  to  it,  and  will  be  as 
much  bound  by  it,  as  if  it  entered 
specially  into  the  agreement  of  bar- 
gain and  sale.  Sucli  usage  may  be 
shown  by  proof  of  the  practice 
among  merchants  and  traders,  gen- 
erally, in  a  town  or  city,  or  by  evi- 
dence of  the  mode  of  dealing  in  a 
particular  branch  or  class  of  trade. 
It  is  undoubtedly  true  that  in  order 
to  render  the  usage  of  a  particular 
trade  or  place,  binding  upon  a  party, 
so  as  to  make  it  a  part  of  a  contract, 
it  must  be  made  to  appear  that  it 
was  known  to  the  party  who  is  to  be 
affected  by  it.  But  this  knowledge 
may  be  established  by  presumptive, 
as  well  as  by  direct  evidence. 

' '  It  may  be  inferred  from  the  uni- 
formity and  long  continuance  of  the 
usage;  from  the  fact  that  a  party 
has  for  some  time  been  in  the  par- 
ticular trade  to  which  it  relates; 
from  the  previous  dealings  between 
the  parties,  or  from  any  other  facts 
tending  to  show  its  general  noto- 
riety. Whether  such  facts  exist  in 
any  particular  case  is  a  proper  ques- 
tion for  a  jury.  In  the  case  at  bar, 
there  was  evidence  tending  to  prove 
the  iisage,  and  its  knowledge  by  the 
defendant,  from  which  it  was  com- 
petent for  the  jury  to  infer  a  con- 


tract to  pay  interest  on  the  article* 
as  charged  by  the  plaintiff." 

In  Adriance  v.  Brooks,  13  Tex. 
279,  Hemphill,  C.  J.,  said  the  act  of 
1840  undertook  to  regulate  the  sub- 
ject of  iutei-est;  and  unlike  the 
English  statute  of  37  Hen.  8,  it  gave 
an  affirmative,  and  not  an  indirect 
and  negative  sanction  to  its  allow- 
ance. It  differed  also  from  the  Eng- 
lish statute  by  dividing  interest  into 
two  classes,  viz.:  that  which  is 
allowed  by  law,  and  that  which  may 
be  agreed  upon  by  the  parties;  and 
there  was  the  further  distinction, 
not  known  to  the  earlier  English 
statutes,  that  the  contract  on  which 
the  law  provided  that  interest  should 
be  recovered,  or  in  which  the  par- 
ties might  stipidate  for  interest, 
should  be  written  contracts.  But 
though  provision  is  made  for  recov- 
ery of  interest  on  written  contracts, 
yet  there  is  no  prohibition  of  a  stip- 
ulation for  the  payment  of  interest 
on  a  verbal  agreement,  or  on  a  con- 
tract not  in  "svriting.  And  if  such 
an  agreement  be  not  criminal,  or 
contrary  to  good  morals,  or  public 
policy,  it  would  seem  that  it  should 
be  binding.  And  accordingly,  iit 
Pridgen  v.  Hill,  12  Tex.  374,  which 
was  a  suit  on  an  account  upon  which 
the  party  had  agreed  to  pay  interest, 
it  was  held,  that  such  agreement 
was  valid,  and  might  be  enforced  in 
law.  In  the  previous  cases  of  Cloud 
V.  Smith,  1  Tex.  102;  Close  v.  Fields, 
2  Tex.  232;  Crook  v.  McGreal,  3  Tex. 
487;  Davis  v.  Thorn,  6  Tex.  486;  10" 
id.  33,  the  question  of  verbal, —  a  dis- 
tinct positive  agreement  to  pay  in- 


INTEKEST   AS   COMPENSATION. 


585 


the  creditor,  is  a  consent  to  pay  interest  as  the  custom  requires. 
And  a  continuance  of  the  dealing  after  paying  one  account 
containing-  such  interest  is  to  furnish,  by  this  circumstance,  ad- 
ditional evidence  of  such  consent  in  the  subsequent  transaction.^ 
Whether  there  is  in  a  given  case  such  an  agreement  is  for  the 
jury.2 

The  custom  in  such  cases  is  an  evidentiary  fact  to  show  the 
intention  of  the  parties.  It  has  no  other  effect.  It  does  not 
alter  the  law.  It  derives  all  its  force  from  being  sanctioned  and 
adopted  by  the  parties.  It  can  have  no  validity  to  bind  the 
debtor  to  pay  interest,  or  fix  a  rate  or  mode  or  computation ; 
nor  wiU  his  acquiescence  or  tacit  consent  bind  him  to  a  liability 
which  he  could  not  by  express  agreement  legally  assume.  It  is 
a  legal  usage  of  merchants  to  cast  interest  on  the  items  of 
their  mutual  accounts,  and  strike  a  balance  at  the  end  of  the 
year,  and  make  tliat  balance  the  firet  item  of  principal  for 
the  ensuing  3'ear ;  but  the  law  does  not  make  it  binding  on  the 
debtor,  except  under  a  specific  agreement   after  the  mutual 


terest  on  a  debt  acknowledged  to  be 
due, —  was  not  presented;  and  al- 
though there  are  expressions  in  the 
opinions  in  these  cases  which  would 
seem  to  restrict  the  recovery  of  in- 
terest to  debts  on  written  contracts, 
and  such  is  the  general  i-ule  under 
the  statute,  yet  we  deem  it  no  de- 
parture from  the  principle  of  those 
decisions,  with  reference  to  the  facts 
then  before  the  court,  to  hold,  when 
a  new  fact  is  presented,  viz.:  an 
agreement  to  pay  interest,  that  it 
shall  be  enforced,  though  it  be  not 
in  writing;  nor  the  debt  on  which  it 
was  stipulated,  in  writing:  such 
agreement  not  being  prohibited  by 
law,  nor  subversive  of  sound  policy 
or  good  morals.  .  .  .  But  the 
subject  is  one  which  maj-  be,  and, 
as  we  have  seen,  has  been,  regulated 
by  statute.  This  has  provided  for 
the  stipulation  and  recovery  of  in- 
terest on  written  contracts.  And, 
on  the  grounds  stated,  we  have  also 


supported  verbal  agreements  to  pay 
interest.  But  this  case  is  neither 
upon  a  written  contract,  nor  was 
there  any  agreement  to  pay  interest. 
The  ground  upon  which  it  is  claimed 
is  the  fact  that  the  defendant  had 
previously  paid  interest  on  similar 
accounts.  This  we  deem  insuffi- 
cient. Had  the  contract  been  in 
writing,  the  statute  would  have  al- 
lowed interest;  or  had  he  verbally 
agreed  to  pay,  we  would  not  have 
permitted  him  to  violate  his  engage- 
ment. Thus  far  we  will  go  beyond 
the  cases  expressly  provided  for  by 
the  statute.  But  we  will  not  go  fur- 
ther, and  sciiitinize  tlie  acts  of  the 
parties,  to  judge  whether  an  im- 
plied obligation  to  paj'  interest,  as 
an  incident  of  the  debt,  has  been 
created." 

1  Warren  v.  Tyler,  81  111.  15. 

2  See  Avers  v.  Metcalf,  39  111.  307r. 
Fisher  v.  Sargent,  10  Cush.  250.  See 
Cole  V.  AVall,  9  Pick.  325. 


5S6  INTEREST. 

dealings  are  passed.*  A  learned  English  text  writer ^  says: 
"AVhere  parties  have  acquiesced  in  a  course  of  dealing  in 
which  interest  was  exacted,  they  will  be  assumed  to  have  con- 
tracted to  pay  it.*^  And  in  this  way  even  compound  interest 
may  be  charged  as  long  as  the  accounts  remain  open/  But, 
although  compound  interest  may  be  charged,  by  means  of  half 
yearly  rests,  where  such  practice  is  assented  to,  it  is  not  suiRcient 
to  show  that  such  has  been  the  usage  of  the  plaintiff,  without 
proving  that  the  defendant  was  acquainted  with  it.*  And  even 
in  the  case  of  merchants'  accounts  where  this  system  prevails, 
the  plaintiff  can  recover  no  more  than  the  principal  upon  the 
last  balance,  in  which  there  is  no  new  account,  and  no  new 
transaction,  however  long  it  may  be  before  the  action  is  brought 
to  recover  the  balance,  and  the  jury  cannot  give  interest,  still 
less  compound  interest,  upon  the  balance.®  And  the  same  rule 
applies  between  banker  and  customer.  Accounts  which  ai*e 
made  up  with  yearly  or  half-yearly  rests,  while  the  relationship 
continues,  only  bear  simple  interest  from  the  time  it  is  termi- 
nated by  death  or  otherwise."  ^ 

Quantum  meruff  claim  to  interest. —  Where  one  person  re- 
quests another  to  perform  service,  supply  goods  or  pay  money, 
and  the  request  is  complied  with  without  anything  further 
being  said  or  done  to  indicate  his  intentions,  it  is  a  very  simple 
transaction ;  the  law  interprets  it  according  to  the  ethics  of  fair 
dealing ;  the  request  acceded  to  imports  an  agreement  so  definite 
and  so  certain  to  be  understood  by  both  parties  in  the  same 

1  Van  Hemert  v.  Porter,  11  Met.  L.  R.  7  Eq.  543,  where  acquiescence 
210;  Mars  v.  South  wick,  2  Port.  351;  in  a  banker's  charge  of  500?.  for  a 
Jones  V.  Ennis,  18  Hvm,  453.  half  year's  commission  on  an  over- 

2  Mayne  on  Dam.  Wood's  edition,  drawn  account,  was  held  not  to  en- 
221.  title  the  banker  to  make  the  same 

3  Ex  parte  Williams,  1  Rose,  399.  charge  as  of  right  in  the  subsequent 

4  Bruce  v.  Hunter,  3  Camp.  467;  half  years;  also  Crosskill  v.  Bower, 
Newell  V.  Jones,  4  C.  &  P.  124;  32  Beav.  86;  32  L.  J.  Ch.  540. 
Eaton  V.  Bell,  5  B.  «&  Al.  34;  Fer-  SAttwood  v.  Taylor,  1  M.  &  G. 
guson  V.  Fyffe,  8  CI.  &  F.  121;  301;  Waring  v.  Cunliffe,  1  Ves.  99; 
Mosse  V.  Salt,  42  Beav.  269;  32  L.  J.  Ex  parte  Bevan,  9  Ves.  223;  Fergu- 
Ch.  756.  son  v.  Fyflfe,  8  CI.  &  F.  121. 

'  Do wes  V.  Pinner,  2  Camp.  486,  n;         ^Per  Lord  Selborne,  C;   Barfield 
Moore   v.  Voughton,   1  Stark.   487.      v.  Lougliborough,  L.  R.  8  Ch.  7. 
And  see  Williamson  v.  Williamson, 


INTEEEST    AS    COMPENSATION. 


587 


senso,  that  they  deem  it  quite  superfluous  to  state  it.  And  on 
such  transactions,  Avhen  a  remedy  is  sought,  the  common  law 
requires,  in  ]ileading,  no  greater  certainty  or  particularity.  The 
party  making  the  request,  Iw  necessary  intendment,  promises 
the  party  complying  with  it  to  pay  him  so  much  as  he  reason- 
ably deserves.  For  benefits  conferred  upon  request,  or  enjoyed 
under  various  circumstances  which  are  tantamount  to  a  re- 
quest, there  is  a  legal  duty  to  make  compensation ;  this  is  meas- 
ured by  the  standard  of  reciprocal  justice.  The  party  in  whose 
favor  such  duty  is  implied  is  legally  entitled  to  recover  so  much 
as  he  reasonably  deserves.  Interest  is,  in  many  cases,  allowed 
upon  this  principle.  It  is  almost  an  axiom  in  American  juris- 
prudence, that  he  who  has  the  use  of  another's  money,  or  money 
he  ought  to  pay,  should  pay  interest  on  it.^ 

It  is  allowed  on  money  lent. —  ISTot  on  the  ground  that  the 
money  is  due  to  the  lender,  and  the  borrower  in  default  for  not 
repaying  the  money  from  the  moment  of  receiving  it ;  but  on 
the  principle  that  the  use  of  money  is  worth  the  legal  rate  of 
interest ;  and  therefore  the  money  borrowed  should  bear  interest 
from  the  date  of  the  loan.- 


1  Jones  V.  "Williams,  2  Call,  85; 
Fasholt  V.  Reed,  16  S.  &  R.  266; 
Miller  v.  Bank  of  Orleans,  5  Wliart. 
503;  Rapelie  v.  Emory,  1  Dall.  349; 
Lewis  V.  Bradford,  8  Ala.  632. 

2  1  Am.  Lead.  Cas.  518;  Butler  v. 
Butler,  10  R.  I.  503;  Hodges  v. 
Hodges,  9  R.  I.  32;  Reid  v.  Rens- 
selaer Glass  Fact.  3  Cow.  393;  S.  C.  5 
id.  589.  In  England  the  rule  is  not 
to  give  interest  on  money  lent.  Lord 
EUenborough  said  no  case  had  oc- 
curred in  fifty-two  years  in  which, 
upon  a  simple  contract  of  lending, 
witiiout  any  agTeement  for  the  pay- 
ment of  the  principal  at  a  certain 
time,  or  for  interest  to  run  imme- 
diately, or  special  circumstances 
from  which  a  contract  for  interest 
was  to  be  inferred,  had  interest  ever 
been  given. 

Some  American    cases  recognize 


the  same  doctrine.  ]\Iun-ay  v.  Ware, 
1  Bibb,  325;  Bell  v.  Logan,  7  J.  J. 
Marsh.  594;  but  see  Chaney  v.  Cooke, 
5  T.  B.  Mou.  248. 

In  Hubbard  v.Charlestown  Branch 
R.  R.  Co.  11  Met.  124,  Shaw,  C.  J., 
said:  "The  only  question  now  raised 
on  this  bill  of  exceptions  is,  whether 
the  defendants  were  chargeable  with 
interest  upon  the  amount  overdrawTi 
by  them  from  the  time  of  such  over- 
draft. The  court  are  of  the  opinion 
that  the  direction  of  the  judge  was 
not  correct  in  point  of  law,  when  he 
instructed  the  jury  that,  if  the 
amount  was  actually  paid  to  the 
defendants,  then  the  jury  should 
add  interest  from  the  time  of  the 
overdraft,  without  instructing  them 
to  take  into  consideration  the  other 
cii'cumstances  of  the  case.  If  money 
wei'e  fraudulently  or  wrongfully  ob 


588 


INTEREST. 


Interest  is  allowed  on  money  paid. —  From  the  date  of  the 
payment,  such  a  debt  is  of  the  same  nature  as  a  loan,  and  the 
right  to  interest  is  based  upon  the  same  reason.  The  cases  on 
this  point  are  numerous.  Where  three  persons  were  interested 
in  a  cargo  sent  abroad,  money  paid  for  general  average  was 
held  to  bear  interest  from  the  tmie  it  was  advanced.  Interest 
was  deemed  demandable  in  every  case  where  one  man  had  used 
or  been  benefited  by  the  application  of  the  money  of  another, 
paid  under  such  circumstances  as  to  imply  a  request.  It  would 
be  inequitable  to  allow  interest  onl}^  from  the  time  when 
the  principal  was  demanded,  in  such  a  transaction,  happen- 
ing in  a  foreign  country,  where  it  is  long  before  the  plaintiff 
can  be  advised  of  his  having  a  claim,  and  longer  still,  before 
he  can  know  exactly  what  he  is  entitled  to  demand.^  It 
is,  therefore,  a  general  rule,  that  interest  is  recoverable 
on  money  paid  by  one  person  for  the  benefit  of  another  at 
his  request,  express  or  implied.^    It  may  be  recovered  by  a 


tained  from  a  bank,  it  might  be  re- 
covered back  with  interest.  Wood 
V.  Robbins,  11  Mass.  504.  Perhaps 
the  evidence  might  have  been  prop- 
erly left  to  the  jury  to  find  whether 
the  money  was  wrongfully  drawn 
or  not.  But  we  think  an  overdraft 
on  a  bank  is  not  necessarily  wrong- 
ful; it  may  be  made  in  conformity 
with  some  mutual  agreement  or  un- 
derstanding. A  draft  on  a  bank,  by 
one  who  has  no  funds,  or  beyond 
his  funds,  and  a  payment  made  in 
pui'suance  of  it,  constitute  a  loan  of 
money;  and  supposing  it  to  be  made 
without  any  stipulation  for  interest 
at  the  outset,  it  does  not  necessarily 
draw  interest  until  neglect  or  refusal 
of  payment,  after  demand  made,  or 
some  otlier  default.     ,     .     . 

"  In  general,  when  there  is  a  loan 
without  any  stipulation  to  pay  in- 
terest, and  wlien  one  has  the  money 
of  another,  having  been  guilty  of  no 
wrong  in  obtaining  it,  and  no  de- 
fault in  returning  it,  interest  is  not 
chargeable." 


See  Ether idge  v.  Birney,  9  Pick. 
27:3. 

In  Harris  v.  Benson,  2  Str.  910,  it 
is  said  that  interest  had  never  been 
allowed  for  money  lent,  without  a 
note.  In  Robinson  v.  Bland,  2  Burr. 
1077,  it  was  held  that  interest  was 
recoverable  on  money  lent  from  the 
time  when  it  was  agreed  to  be  paid. 

iSims  V.  Willing,  8  S.  &  R.  103; 
Gibbs  V.  Bryant,  1  Pick.  118;  Ilsley 
V.  Jewett,  2  Met.  168;  Weeks  v. 
Hasty,  13  Mass.  218. 

2  Gibbs  V.  Bryant,  1  Pick.  118; 
Weeks  v.  Hasty,  13  Mass.  218;  Lio- 
tard  V.  Graves,  3  Cai.  226;  Milne  v, 
Rempublican,  3  Yeates,  102;  Hastic  v. 
De  Peyster,  3  Cai.  190;  Thompson  v, 
Stevens,  2  Nott.  &  McCord,  494; 
Buckmaster  v.  Grandly,  8  111.  626; 
Aiken  v,  Pevy,  o  Strobh.  15;  Blanly 
V.  Hendricks,  2  W.  Black.  761; 
Trellowney  v.  Thomas,  1  H.  Black. 
304;  Craven  v.  Fickell,  1  Ves.  63; 
Chamberlain  v.  Smith,  1  Mo.  718; 
GiUett  V.  Van  Rensselaer,  15  N.  Y. 
397;  Morris  v.  Allen,  14  N.  J.  Eq.  44. 


mTEEEST   AS    COMPENSATION.  589 

surety  wlio  pays  his  principal's  clcbt.^  Though  a  surety  dis- 
charge a  debt  bearing  a  high  rate  of  conventional  interest,  he  is 
not  entitled  to  charge  his  principal  thereafter  the  same  rate, 
but  only  the  legal  rate.^  So  a  surety  obtaining  contribution 
from  a  co-surety  is  entitled  to  interest.'  But  if  the  plaintiff  has 
securities  from  the  principal  in  his  hands  for  the  payment  of 
the  debt  which  were  expected  to  yield  the  means  therefor,  the 
co-sm-ety  is  entitled  to  notice  of  any  deficiency.  His  hability 
extends  only  to  a  moiety  of  the  deficiency ;  as  that  is  contingent 
both  as  to  time  and  amount,  he  should  not  be  charged  with  in- 
terest until  he  is  at  least  informed  that  he  is  a  debtor.'* 

Such  information  would  be  manifestly  essential  to  make  out 
an  equitable  title  to  charge  interest ;  such  a  notice  would  place 
the  co-surety  at  once  in  default  if  he  did  not  then  pay  his 
contribution ;  such  notice  is  necessary  to  establish  his  consent 
to  accept  forbearance.  A  party  paying  money  for  another 
cannot  recover  for  interest  paid,  which  accrued  m  consequence 
of  his  own  neghgent  delay  in  making  the  payment.*  An  agent, 
or  factor,  is  also  entitled  to  interest  on  his  advances  for  his 
principal.^ 

Where  partners  agree  to  invest  equal  amounts  in  the  common 
business,  and  one  advances  a  larger  sum  than  the  other,  he  is 
entitled,  upon  settlement,  to  an  allowance  of  interest  on  one- 
half  of  the  excess  from  the  date  of  its  appropriation  to  the  use 
of  the  firm."  Interest  claimed  on  the  principle  under  consid- 
eration is  liable  to  be  affected  by  any  circumstances  which 
justly  postpone  the  duty  of  payment  until  demanded.^ 

iSims  V.  Gourelock,  7  Rich.  L.  23;  (S.  C.  L.),  400;  Smetz  v,  Kennedy, 

Sallee    v.    Meugy,    1     Bailey,    620;  Riley  (Law.),  218;  Walters  v.  McGirt, 

Miles  V.  Bacon,  4  J.  J.  Marsh.  458;  8  Rich.   287;   Howard  v.  Rehm,  27 

Breckenridge  v.  Taylor,  5  Dana,  114;  Ga.  174. 

Knight  V.  Mantz,  Ga.  Dec.  22;  Win-  "Beach    v.    Callis,    85  N.   Y.  55; 

der  V.  Deffenderffer,  2  Bland,  166.  Lloyd  v.  Carrier,  2  Lans.  364;  French 

2  Smith   V.    Johnson,    23    Cal.    63.  v.  French,   126  Mass.  360;  Morris  v. 

See  Fisk  v.  Bauuette,  30  Wis.  102.  Allen,  14  N.  J.  Eq.  44;  Reynolds  v. 

snsley    V.    Jewett,    2    Met.    168;  Mardis,  17  Ala.  32;  Desha  v.  Smith, 

Aiken  v.  Perry,  5  Strobh.  15.  20  Ala.  747;  Ayerv  Tilden,  15  Gray, 

4Goodloe  V.  Clay,  6  B.  Mon.  238.  178:  Gibbs  v.  Bryant,  1  Pick.  118. 

5Somers  v.  Wright,  115  Mass.  292.  ^  Brown  v.  Campbell,  1  S.  &  R.  176; 

STaj-Ior    v.    Knox;  1    Dana,    399;  Simons  v.  Walter,  1  McCord,  L.  97. 

Cheeseborough    v.    Hunter,    1    Hill  See  Shipman  v.  Miller,  2  Root,  405. 


590  IXTEREST. 

Where  one  of  two  parties  having  contiguous  tenements, 
refused  to  unite  with  the  other  in  erecting  a  new  party  wah,  or 
to  contribute  anything  to  the  expense,  he  denying  the  right  of 
the  phiintiff  to  prostrate  the  okl  wall,  or  to  charge  him  with 
any  portion  of  the  cost  of  the  new,  the  court  held  him  liable ; 
that  the  expense  was  an  equitable  charge  on  the  wall  and  on 
the  owner  for  the  time  being.  The  question  being  raised 
whether  the  plaintiff  was  entitled  to  interest,  and  from  what 
time,  the  chancellor  said  it  was  a  case  of  money  expended  for 
the  use  of  the  defendant,  and  upon  every  sound  principle  the 
plaintiff  ought  to  receive  interest,  after  a  moiety  of  the  joint 
expense  had  been  demanded  and  refused ;  adding  that  it  is  the 
settled  law  of  the  state,  that  money  received  or  advanced  for 
the  use  of  another  carries  interest  after  a  default  in  payment ; 
and  it  is  a  very  reasonable  and  just  rule.  Interest  was  claimed 
from  the  time  of  the  advance  of  the  money  to  build  the  wall ; 
it  was  allowed  from  the  date  of  the  demand  and  refusal,  on  the 
general  principle  that  a  party  is  liable  for  interest  after  a 
default ;  and  by  implication,  it  was  considered  that  the  plaintiff 
was  not  entitled,  on  any  other  principle,  to  interest  from  the 
date  when  it  had  been  advanced.^  The  defendant  could  not  be 
considered  as  in  default  until  demand ;  he  was  under  no  duty  to 
repay  moneys  expended  by  the  ])laintiff,  against  his  will,  for  the 
common  benefit,  until  informed  of  the  amount,  and  an  oppor- 
tunity thus  given  to  discharge  the  indebtedness.  The  principal 
claim  was  not  one  which  the  debtor  aclaiowledged ;  it  was, 
however,  maintained  against  him ; "  but  subsequently  the  doctrine 
on  which  it  was  founded  was  douljted  and  overruled." 

Senator  Golden,*  referring  to  that  case,  said :  "  The  circum- 
stances of  that  case  were  very  peculiar.  The  defendant  was 
liable  to  contribute  to  the  rebuilding  of  a  party  wall.  He  not  only 
refused  to  contribute,  but  forbid  the  prostration  of  the  old  wall. 
The  complainant  erected  a  new  one,  at  a  much  greater  expense 
than  the  re-establishment  of  the  old  one  required.  It  could  not 
be  ascertained  till  the  new  wall  was  appraised,  and  it  was  esti- 

1  Campbell  v.  Mesier,  6  John.  Ch.  » Partridge  v.  Gilbert,  15  N.  Y.  GOl; 
21.  Sherred  v.  Cisco,  4  Sandf.  480. 

2  Caniijbell  v.  Mesier,  4  John.  Ch.  *  In  Rensselaer  Glass  Factory  v. 
334.  Reid,  5  Cow.  598. 


INTEREST   AS   COMPENSATION". 


591 


mated  what  it  would  have  cost  to  restore  the  old  wall,  what  the 
defendant  ought  to  have  paid.  When  the  appraisement  and 
estimate  were  made,  and  the  extent  of  the  defendant's  liahility 
was  thereby  settled,  the  complainant  demanded  the  amount. 
The  chancellor  decided  that  the  defendant  should  pay  interest 
from  that  time.  Here  was  a  case  very  different  from  an  advance 
of  specific  sums  of  money.  It  is  true  the  demand  is  considered, 
in  the  court  of  chancery,  as  a  demand  for  money  advanced ;  but 
it  was  more  like  a  demand  for  uidiquidated  damages,  which 
never  carries  interest.  The  def  endd*nt  could  not  have  discharged 
the  principal  till  after  the  appraisement  and  estimate  had  settled 
how  much  he  was  liable  to  contribute  to  the  party  wall."  ^ 

Interest  ma}^  likewise  be   allowed  on  money  advanced  by 
trustees,  for  the   benefit  of  the   trust.     The   law  requires  of 


1  The  case  of  Rensselaer  Glass  Fac- 
tory V.  Reid  raised  the  question 
whether  cash  advances  made  by  an 
agent,  charged  in  an  account  not  re- 
ported to  his  principal,  but  where 
the  circumstances  indicated  that 
the  principal  must  have  known  that 
advances  were  made,  should  bear 
interest.  Tlie  case  was  very  thor- 
oughly considered.  Senator  Col- 
den,  in  the  prevailing  final  opinion, 
said  generally  of  the  subject  of  in- 
terest: "As  often  as  the  question 
of  interest  has  been  before  a  court, 
the  judges  seem  to  have  considered 
it  as  depending  on  general  equitable 
principles;  and,  in  most  instances, 
to  have  decided  each  case  in  refer- 
ence to  its  particular  circumstances; 
without  attempting  to  give  anj'  rule 
which  might  be  generally  applica- 
ble." And  again:  "  However  it  may 
be  with  respect  to  money  lent,  or  as 
to  money  had  and  received,  or  in  re- 
gai'd  to  merchandise  sold  and  de- 
livered; or,  however  it  may  be 
where  advances  are  made  in  pursu- 
ance of  an  express  agreement,  in 
which  nothing  is  said  about  inter- 
est, I  think  the  above  authorities 
will  admit  of  no  other  conclusion 


than  that  it  is  now  a  well  established 
general  rule  of  law,  that  where  a 
person  advances  money  for  the  use 
of  another,  under  an  implied  author- 
ity, he  who  makes  the  advance  is 
entitled  to  interest  from  the  time  it 
is  made." 

In  the  exhaustive  dissenting  opin- 
ion of  Senator  Spencer,  he  says: 
"Probably  the  rule  of  easiest  appli- 
cation would  be  this:  Where  money 
has  been  lent,  advanced,  or  expend- 
ed by  request,  and  under  an  agree- 
ment to  pay  at  a  specific  time,  or 
where  it  has  been  had  and  received 
under  a  like  agreement,  then  the  al- 
lowance of  interest  may  be  safely 
referred  to  the  princii:»le  of  an  ina- 
plied  contract  to  pay  interest  on  de- 
fault; and  so,  also,  where  the  money 
is  not  to  be  refunded  at  a  particular 
time,  but  a  default  arises  from  a  de- 
mand, or  notice,  the  same  principle 
wiU  apply.  But  where  no  time  of 
payment  is  fixed,  and  where  the 
dutj'  to  pay  arises  from  the  relative 
situation  of  the  parties,  it  seems  it 
should  be  referred  to  a  jury  to  de- 
termine wlietlier  damages  shall  bo 
given,  by  the  allowance  of  inter- 
est." 


592  INTEEEST. 

trustees,  diligence  and  good  f  aitli ;  and  they  will  not  be  entitled 
to  interest  on  advances  made  necessary  by  their  defaults.  As  a 
general  rule,  an  administrator  is  not  entitled  to  interest  on  money 
advanced  by  him  beyond  the  funds  of  the  estate  in  his  hands; 
because  it  is  in  his  power  to  put  himself  in  cash  from  the  estate, 
and  it  is  not  his  duty  to  advance  his  own  funds  for  the  benefit 
of  the  estate.^  If,  however,  such  special  circumstances  exist  as 
to  justify  advances  by,him,  and  he  makes  them  judiciously,  he 
will  be  entitled  to  interest.^  Where  the  advance  by  an  admin- 
istrator or  other  like  trustee  is  meritorious,  or  where  an  executor 
for  the  benefit  of  the  estate  has  paid  his  own  money  for  taxes, 
necessary  expenses,  repairs,  and  debts  which  carried  interest,  he 
is  entitled  to  interest.*  A  trustee  is  not  obliged,  when  the  exi- 
gencies of  his  trust  require  advances,  to  raise  money  at  a  loss  to 
himself.  Where  property  is  in  the  hands  of  a  trustee  as  security, 
and  he  is  restricted,  by  its  nature  and  situation,  fi'om  selling  it, 
and,  in  order  to  keep  it  in  good  order,  he  must  borrow  money, 
he  may  resort  to  banks  or  other  usual  modes  of  raising  money 
upon  his  credit.  And  in  such  cases  he  is  entitled  to  full 
indemnity.* 

Quantum  MERmT  claim  to  interest  between  vendor  and  pur- 
chaser,—  Where  a  purchaser  obtains  possession  of  the  land 
purchased  while  the  contract  is  pending,  such  possession  may 
•oblige  him  to  pay  interest  when  otherwise  he  would  be  entitled 
to  retain  the  purchase  money  without  being  so  liable.  Before 
the  time  fixed  for  payment  he  is  not  liable  to  pay  interest  un- 
less interest  is  required  to  be  paid  by  the  contract.  It  fre- 
quently happens,  however,  that  when  the  time  arrives  for  pay- 

iStorer    v.    Storer,    9    Mass.    37;  obliged  to  pay,  to  provide  himself 

Evarts  v.  Nason's  Estate,  11  Vt.  132.  with  the  necessary  means  to  keep 

2Rix  V.  Smith,  8  Vt.  365.  the  trust  property  in  good  order.  In 

3 Mann  V.  Laurence,  3  Bradf.  Sur.  a  note   the    reporter    says:     "The 

424;  Liddell  v.  McVicker,  11  N,  J.  L.  trustee  in  this  case  could  only  claim 

44;  Jennison  v.  Hapgood,   10  Pick,  an  indemnity,  and  ought  not  to  be 

79;  Hayward  v.  Ellis,  13  Pick.  272.  allowed  compound  intei-est,  unless 

■*  In  Barrell  v.  Joy,    10  Mass.  221,  he  could  show  that  he  was,  in  the 

compound  interest    was  allowed  a  discharge  of  his  duty,  obliged  to  pay 

trustee,  under    the    circumstances,  it."  Evertson  v.  Tappen,  5  John.  Ch. 

stated  in  the  text,  as  a  mode  of  com-  517.  See  Lessees  of  Dil  worth  v.  Sin- 

pensation  for  the  interest  he  was  derling^  1  Bin.  494. 


INTEEEST   AS    COMPENSATION". 


593 


ment  the  seller  is  not  prepared  to  fulfil  the  concurrent  condition 
of  making  title ;  on  that  account  the  purchaser  would  be  under 
no  obligation  to  part  with  his  money ;  and  being  in  no  default, 
interest  on  that  ground  could  not  be  exacted ;  but  if  he  has 
taken  and  enjoys  the  possession  while  the  vendor  is  precluded 
from  demanding  the  money  on  account  of  the  state  of  the 
title,  and  the  vendor  finally  makes  title  so  as  to  have  a  right  to 
performance  of  the  contract  of  purchase,  he  will  be  entitled  to 
interest  on  the  purchase  money  if  the  purchaser  had  possession 
of  the  estate.^  This  rule,  however,  is  not  absolute ;  it  rests  upon 
equitable  grounds,  and  is  liable  to  the  modifying  effect  of  other 


iMinard  V.  Beans,  64  Pa.  St.  411; 
Lang  V.  Moore,  31  N.  J,  Eq.  413; 
Breckenridge  v.  Hoke,  4  Bibb,  272; 
Cleveland  v.  Burrill,  25  Barb.  532; 
CuUum  V.  Bank,  4  Ala.  21;  Selden 
V.  James,  6  Rand.  465;  Rutledge  v. 
Smith,  1  McCord  Ch.  399;  Boyce  v. 
Pritchett's  Heirs,  6  Dana,  231;  Hep- 
bum  V.  Dunlop,  1  "Wheat.  179; 
Brockenbrough  v.  Blythe's  Ex'r,  3 
Leigh,  619. 

McKennan  v.  Sterrett,  6  Watts, 
1C2.  Action  for  purchase  money  on 
tender  of  title;  purchaser  in  posses- 
sion. Rogers,  J.:  "At  the  time  of 
the  contract  both  parties  were  aware 
that  Sterrett  had  no  title;  notwith- 
standing which,  McKennan  was  to 
take  immediate  possession,  as  ap- 
pears from  that  clause  which  stipu- 
lates that  if  McKennan  is  deprived 
of  the  property,  SteiTett  will  pay 
him  for  all  the  improvements,  either 
in  buildings  or  otherwise.  With  a 
full  knowledge  of  all  the  facts, 
Sterrett  agi-ees  to  sell  McKennan  ten 
acres  of  land,  with  the  allowance, 
for  45  dollars  per  acre,  and  Sterrett 
agrees  to  give  him  a  clear  title.  The 
payments  are  to  be  one-half  in  hand, 
as  soon  as  he  makes  him  a  right  for 
the  ten  acres  of  land,  and  tlie  re- 
maining half  in  three  yearly  pay- 
ments. Now,  nothing  can  be  clearer, 
than  that  until  tender  of  title,  the 
Vol.  1  —  38 


vendor  is  not  entitled  to  payment  of 
the  purchase  money;  and  it  is  a 
general  principle,  that  interest  is  not 
demandable  of  right,  until  the  debt 
is  due,  except  in  pursuance  of  the 
terms  of  an  express  contract;  and 
no  contract  is  here  alleged.  But  the 
argument  is  that  the  vendor  took 
possession,  and  as  he  enjoys  the 
profits,  be  ought  to  pay  interest. 
And  this  is  true  in  ordinary  casoe, 
where  a  time  is  fixed  for  the  pay- 
ment of  the  j)urchase  money;  but 
the  riglit  to  take  immediate  posses- 
sion was  part  of  the  contract;  and 
the  vendees  having  taken  possession" 
cannot  affect  the  construction  of 
that  clause  in  the  agreement  on 
which  the  debt  is  only  recoverable 
after  a  clear  title  is  made.  A  differ- 
ent construction  would  render  the 
vendor  careless  of  obtaining  and 
tendei'ing  a  title,  as  he  would  be  sure 
of  legal  interest  from  the  time  the 
vendee  took  possession.  Why  this 
extraordinary  delay  took  place,  we 
have  not  been  informed;  but  there  is 
nothing  which  leads  us  to  believe 
that  it  arose  from  the  fault  of  the 
vendee.  The  court  are  therefore  of 
opinion  that  interest  is  only  demand- 
able  from  the  time  of  the  tender  of 
the  title."  See  Beeson  v.  Elliott,  1 
Del.  Ch.  368. 


594:  INTEKEST. 

equitable  circumstances  for  the  consideration  of  a  chancellor  in 
equity  or  of  a  jury  at  law.^ 

Where  there  has  been  wilful  and  vexatious  delay  by  the 
fault  or  gross  laches  of  the  vendor,  in  consequence  of  which 
the  purchase  money  has  lain  idle  and  unproductive,  it  may  be 
left  to  the  jury  to  say  whether  such  vendor  shall  receive  inter^- 
est.^  On  the  rescission  of  a  contract  of  sale  where  the  vendee 
has  been  in  possession,  in  the  absence  of  proof  to  the  contrary, 
this  use  will  in  equity  be  deemed  equivalent  to  that  of  the 
price  paid,  and  interest  ought  not  to  be  given.^  So,  where  the 
vendor  in  a  verbal  contract  refused  to  perform  it,  the  vendue  is 
entitled,  in  addition  to  the  purchase  money  paid,  to  receive  in- 
terest thereon  only  from  the  time  the  vendor  asserted  his 
rights/ 

Whether  the  vendee  be  entitled  to  have  the  consideration  re- 
funded upon  rescission  of  the  sale,  or  to  damages  on  the  basis 
of  consideration  for  a  total  or  partial  breach  of  the  covenants 
for  title,  interest  Avill  be  withheld  for  so  much  of  the  time  as  he 
enjoyed  the  possession  without  liability  for  mesne  profits.^  The 
doctrine  is  that  possession  is  equivalent  to  interest  on  the  con- 
sideration ;  and  where  the  bargain  is  given  up,  or  the  title  fails 
and  the  purchase  money  must  be  refunded,  interest  will  not  be 

1  Letcher    v,   Woodson,   Brockon-  ^Staats  v.  Ten  Eyck,  3  Cai.   Ill 

borough,  212.  Pitcher  v.    Livingston,   4  John.    1 

In  Dias  v.  Glover,  Hoff.  Ch.  71,  it  Bennett  v.  Jenkins,  13  John.  50 
was  held  that  though  the  general  Baldwin  v.  Munn,  2  Wend.  399;  Dim- 
rule  is  to  allow  interest  from  the  mick  v.  Lockwood,  10  Wend.  142; 
time  when  the  contract  should  have  Caulkius  v.  Harris,  9  John.  324; 
been  fulfilled,  and  to  give  the  pur-  Kane  v.  Sanger,  14  John.  89;  Baxter 
chaser  the  rents  and  profits;  yet,  if  v.  Ryers,  13  Barb.  2G7;  Flint  v. 
the  vendor  caused  the  delay,  and  in-  Steadman,  30  Vt.  210;  Eich  v.  John- 
terest  exceeded  the  rent,  the  pur-  son,  1  Chand.  19;  S.  C.  2  Pin.  88; 
chaser  should  be  permitted  to  elect  Noonan  v.  Ilsley,  21  Wis.  138;  Pat- 
to  pay  the  interest  or  reUnquish  his  terson  v,  Stewart,  0  W.  &  S.  527 
riglit  to  the  rents.  Fernander    v.    Dunn,    19    Ga.    197 

2McCormick  v.    Crall,    0    Watts.  Harding    v.    Larkin,    41     111.    413 

307;  Kester  v.  Rockell,  2  W.  &  S.  Thompson  v.  Jones,  11  B.  Mon.  305 

305;  Stevenson  v.  Maxv.'ell,  2  Sandf.  Hale  v.  New  Orleans,  13  La.  Ann, 

Ch.  274;  S.  C.  2  Comst.  408.  499;  Boch  v.  Miller,  10  La.  Ann.  44 

3 Talbot  V.  Sebree's  Heirs,  1  Dana,  Clark  v.  Parr,   14  Ohio,  118;  Whit 

50;  WicklifTe  v.  Clay,  1  Dana,  594.  lock  v.  Crew,  28  Ga.  289. 

4  Fox's  Heirs  v.  Lowely,  1  A.  K. 
Marsh.  388. 


INTEKEST   AS   COMPENSATION.  595 

added  in  either  case  to  a  purchaser  who  has  had  possession,  un- 
less there  is  a  hability  to  the  superior  owner  for  rents  and 
profits;  and  then  onlj^  to  the  extent  of  that  hability.^  The 
reason  assigned  is,  if  the  occupant  shall  recover  interest  on  the 
value  of  the  land,  when  he  has  received  the  equivalent  of  that 
interest  in  the  use  of  the  land,  he  will  have  received,  and  his 
vendor  will  have  lost,  more  than  the  value  of  what  was  given 
for  it ;  and  as  the  occupant  is  liable  to  the  cvictor  for  mesne 
profits  for  the  period  of  limitation  preceding  the  eviction,  for 
that  period  he  should  be  entitled  to  interest  on  the  considera- 
tion which  he  paid  for  the  land.^  This  doctrine  is  further  illus- 
trated by  the  case  of  a  tenant  by  the  curtesy  conveying  in 
fee  with  warranty.  The  gi^antee  has  been  held  entitled  to  re- 
cover from  his  estate,  on  the  covenant,  only  the  purchase  money, 
with  interest  from  the  time  of  his  death.'  So  where  an  evio- 
tion'is  only  by  the  claim  of  a  tenant  in  dower,  the  measure  of 
damages  is  the  present  value  of  an  annuity  equal  to  the  interest 
at  the  legal  rate  on  one-third  of  the  consideration  money,  for 
the  time  the  tenant  in  dower  has  a  probable  expectation  of  life, 
according  to  approved  tables  of  life  annuities.*  The  purcliaser 
must  sometimes  submit  to  equitable  terms  when  in  default,  in 
order  to  obtain  relief  by  specific  performance.  In  such  cases, 
in  order  fully  to  indemnify  the  seller,  the  court,  according  to 
the  circumstances,  may  decree  a  larger  amount  of  interest  than 
such  vendor  could  recover  as  plaintiff ;  as  by  compounding  the 
interest,  with  rests  at  short  intervals.      "When  a  vendee  has  a 

1  Wliitlock  V.  Crew,  28  Ga.  289.  he  has  no  right,  in  conscience,   to 

2  Cogswell's  Heirs  v.  Lyon,  3  J.  J .  compel  the  vendor  to  pay  it  again. 
Marsh.  40.  In  this  case  the  deed  And  sui'ely,  if  he  must  have  the  in- 
was  avoided,  although  the  entire  terest,  the  vendor  should  have  rents, 
consideration  had  been  paid,  on  the  But,  in  equity,  the  interest  on  the 
giound  of  fraud  on  creditors,  and  price  and  the  use  of  the  land  are 
the  court  say:  "Asa  general  prop-  considered  equivalent,  and,  there- 
osition.  it  is  plainly  just  and  reason-  .  fore,  there  need  be  no  account  of  the 
able  that  the  vendee,  after  losing  profits,  as  they  should  be  set  off 
the  benefit  of  his  purchase,  should  against  the  interest."  See  Bartlett 
be  restored  to  the  price  which  he  v.  Blauton,  4  J.  J.  ]Marsh.  440. 
gave,  and  its  annual  interest.     But  3  House  v.  House,  10  Paige.  loS. 

if  he  shall  have  already  received  the  ^Wager  v.  Schuyler,  1  "Wend.  553. 
interest  or  its  equivalent,  in  the  en-  5  Cleveland  v.  Burrill,  25  Barb, 
joyment  of  the  profits  of  the  land,      532;  Morris  v.  Hoyt,  11  Mich.  10. 


596 


INTEEEST. 


right  to  recover  a  deposit  of  a  part  or  the  whole  of  the  purchase 
money,  because  of  the  vendor's  inability  to  make  title,  he  can 
also  recover  interest  from  the  time  it  was  paid,  without  any 
express  agreement.^ 

Interest  allowed  from  time  when  money  ought  to  be  paid. — 
It  is  imposed  by  law,  as  damages,  for  not  discharging  a  debt 
when  it  ought  to  be  paid.  In  this  country,  the  principle  has 
long  been  settled,  that  if  a  debt  ought  to  be  paid  at  a  particular 
time,  and  is  not  then  paid,  tlirough  the  default  of  the  debtor, 
compensation  in  damages,  equal  to  the  value  of  money,  which 
is  the  legal  interest  upon  it,  shall  be  paid  during  such  time  as 
the  party  is  in  default.^  The  important  practical  inquiry,  there- 
fore, in  each  case,  in  which  interest  is  in  question,  is,  what  is  the 
date  at  which  this  legal  duty  to  pay,  as  an  absolute  present  duty, 
arose.  This  date  does  not  always  coincide  with  that  at  which 
the  demand  is  legally  due  and  suable. 

"Where  a  sum  certain  is  payalDle  at  a  particular  time,  either 
immediately  after  the  debt  is  contracted,  or  in  the  future,  the 
debtor  should  pay  at  that  time ;  otherwise,  he  is  at  once  in  de- 
fault, and  liable  for  interest.  In  such  cases,  it  is  his  duty  to  pay 
at  the  very  time  when  the  debt  is  legally  and  technically  due.^ 


1  Flinn  v.  Barber,  64  Ala.  200. 

21  Am.  Le^d.  Cases,  498;  Day  v. 
Brett,  6  John.  24;  Hunt  v.  Jacks,  1 
Hayw.  199;  Broughton  v.  Mitchell, 
64  Ala.  210;  Flinn  v.  Barber,  64  Ala. 
200;  Milton  v.  Blackshear,  8  Fla.  161; 
Bishop  Hill  Colony  v.  Edgcrton,  26 
111.  54;  Cheek  v.  Waldrum,  25  Ala. 
152;  Purdy  v.  PhiUips,  11  N.  Y.  406; 
People  V.  New  York,  5  Cow.  331; 
Dodge  V.  Perkins,  9  Pick.  368;  Will- 
iams V.  Sherman,  7  Wend.  109;  Ten 
Eyck  V.  Houghtaling,  12  How.  Pr. 
523;  Van  Rensselaer  v.  Jewett,  2 
Comst.  135;  Mateman  v.  Williamson, 
69  lU.  423;  Swett  v.  Hooper,  62  Me. 
54;  Wenman  v.  Mohawk  Ins.  Co.  18 
Wend.  267;  French  v.  French,  126 
Mass.  360;  McMalion  v.  N.  Y.  etc.  R. 
R.  Co.  20  N.  Y.  469.  In  this  case  the 
court    held    that  interest    may   be 


charged  on  the  ground  of  the 
debtor's  default,  although  the 
amount  of  the  demand  neither  has 
been  nor  can  readily  be  ascertained. 

3  Elkin  V.  Moore,  6  B.  Mon.  462; 
Rensselaer  Glass  Factory  v.  Reid,  5 
Cow.  587,  611;  Robinson  v.  Bland,  2 
Burr.  1086;  Farquhar  v.  Morris,  7 
Term,  124;  Purdy  v.  Phillips,  11  N. 
Y.  406;  Knickerbocker  Ins.  Co.  v. 
Gould,  80  lU.  388;  Peoria  M.  and  F. 
Ins.  Co.  V.  Lewis,  18  111.  553;  Hunt 
V.  Jacks,  1  Hayw.  199;  Milton  v. 
Blackshear,  8  Fla.  161;  Wenman  v. 
Mohawk  Ins.  Co.  13  Wend.  267; 
Cheek  v.  Waldrum,  35  Ala.  153; 
Bishop  Hill  Colony  v.  Edgerton,  36 
El.  54;  Royal  V.  MiUer,  3  Dana,  55-58; 
Newlan  v.  Shafer,  38  111.  379;  Put- 
nam V.  Lewis,  8  John.  389. 

Interest  is  not  allowed  with  the 


DTTEEEST   AS    COMPEXSATION. 


597 


same  liberality  in  England  as  in  this 
country.  In  Mayne  on  Damages 
(Wood's  "Wayne  on  Dam.  224),  it  is 
said:  "Formerly  it  was  thought, 
where  a  sum  of  money  was  agreed 
to  be  paid  on  a  particular  day,  that 
on  default,  interest  from  that  day 
might  be  recovered,  without  any 
express  or  implied  contract  to  that 
effect.  Blaney  v.  Hendricks,  2  W. 
Bl.  761;  S.  C.  3  Wils.  205;  Shipley  v. 
Hammond,  5  Esp.  114;  Chalie  v. 
Duke  of  York,  6  Esp.  45;  De  Havil- 
land  V.  Bower  Bank,  1  Camp.  50; 
Mountford  v,  Willes,  2  B.  &  P.  337. 
But  this  doctrine  has  now  been  over- 
rviled.  Gordon  v.  Swan,  12  East, 
419;  Higgins  v.  Sargent,  2  B.  &  C. 
348;  Page  v.  Newman,  9  B.  &  C.  378; 
Foster  v.  Weston,  6  Bing.  709;  Cask 
V.  Fowler,  L.  R.  7  H.  L  27;  43  L.  J. 
Ch.  855.  It  has,  however,  been 
always  held  that  where,  by  an  award, 
money  is  made  payable  on  a  certain 
day,  interest  ought  to  be  allowed 
from  that  day,  if  payment  was  de- 
manded at  the  place  appointed. 
Pinham  v.  Tuckington,  3  Cowj).  468; 
Churcher  v.  Stringer,  2  B.  &  Ad. 
777;  Johnson  v.  Durant,  4  C.  &  P. 
327.  I  cannot,  on  principle,  explain 
this  exception.  Many  apparent  ex- 
ceptions to  the  rule  that  interest 
is  only  recoverable  in  the  cases  just 
mentioned  may  be  explained  by  dis- 
tinguishing between  interest  recov- 
ered as  part  of  the  debt  and  interest 
recovered  as  damages  for  its  deten- 
tion. For  instance,  interest  on  a 
deposit  may  be  recovered,  if  laid  as 
special  damage  in  an  action  for  breach 
of  an  agi-eement  to  sell  an  estate. 
De  Bernales  v.  Wood,  3  Camp.  258; 
Farquliar  v.  Farley,  7  Taunt.  592.  So 
it  may  be  allowed  as  damages  in  an 
action  on  a  mortgage  deed  after  the 
day  of  default  (Dickinson  v.  Harri- 
son, 4  Price,  ;382;  Atkinson  v.  Jones, 
2  A.  &  E.  439;  Price  v.  G.  W.  R'y 


Co.  16  M.  &  W.  244);  or  upon  a  con- 
tract to  pay  money  upon  a  particular 
day  (Watkins  v.  Morgan,  6  C.  &  P. 
661);  or  upon  a  covenant  to  indem- 
nify a  surety.  Petre  v.  Duncombe,  20 
L.  J.  Q.  B.  242;  S.  C.  2  Lown.  M.  & 
P.  107.  Where  a  written  security  is 
given  for  the  payment  of  money  on 
a  particular  day,  with  interest  up  to 
that  day  at  a  fixed  rate,  a  claim  for 
subsequent  interest  would  be  a  claim 
for  damages  at  the  discretion  of  the 
tribunal  before  which  the  demand  is 
made,  and  not  for  interest  due  as  a 
matter  of  law.  The  former  rate 
might  but  need  not  be  adopted  in 
assessing  the  damages.  Cook  v. 
Fowler,  L.  R.  7  H.  L.  27-32.  And  it 
is  laid  down  as  a  general  mle,  that 
although  it  be  not  due  ex  contractu, 
a  party  may  be  entitled  to  damages 
in  the  form  of  intei-est,  where  there 
has  been  long  delay  under  vexatious 
aud  oppressive  circumstances,  in  the 
payment  of  what  is  due  under  the 
contract.  Hillhouse  v.  Davis,  1  M. 
&  S.  169;  Arnott  v.  Redfern,  3  Bing. 
353. 

"Interest  cannot  be  recovered,  as 
such,  in  an  action  against  the  vendor 
of  an  estate,  the  sale  of  which  has 
gone  off,  for  the  recovery  of  a  deposit 
which  has  been  lying  idle  (Brad- 
shaw  V.  Bennett,  5  C.  &  P.  48; 
Maberly  v.  Robins,  5  Taunt.  625); 
but  it  may  be  recovered  as  special 
damages  for  breach  of  the  contract, 
if  so  laid.  De  Bernales  v.  Wood,  3 
Camp.  258;  Farquhar  v.  Farley,  7 
Taunt.  592.  But  the  principal  and 
auctioneer  stand  on  a  different  foot- 
ing, and  in  an  action  against  the  lat- 
ter to  recover  the  deposit  paid  to  him, 
interest  cannot  be  recovered,  even 
as  damages,  unless,  perhajjs,  after  a 
demand  and  refusal  on  the  contract 
being  rescinded.  Lee  v.  Warner,  8 
Taunt.  45.  Not  even  when  the  auc/- 
tioneer  has  made  interest  upon  the 


;98 


INTEREST. 


IS'oT  ON  STATUTORY  PENALTIES, —  Interest  is  not  allowed  on 
statutoiy  penalties.^  Where  a  constable,  failing  to  return  an 
execution  within  the  time  prescribed  by  statute,  was  declared 
liable  for  the  amount  then  due  and  ten  per  cent,  damages,  it 
was  held  interest  could  not  be  added.^  Before  judgment,  the 
penalty  allowed  for  the  taking  or  receiving  of  usurious  interest 
by  a  national  bank  does  not  bear  interest.''  A  judgment  for  a 
fine  does  not  bear  interest.*  Interest  may  be  recovered,  how- 
ever, on  stipulated  damages.^ 

"When  on  penalty  of  a  bond. —  There  has  been  some  question, 
in  actions  upon  penal  bonds  wher^  the  damages  for  breach  of 


money  while  in  his  hands;  and  al- 
though he  was  requested  by  one  of 
the  parties,  before  the  completion  of 
the  contract,  to  invest  it.  Harring- 
ton V.  Hoggart,  1  B.  &  Ad.  577. 
Interest  is  not  due,  as  such,  in  an 
action  for  money  secured  on  mort- 
gage, after  day  of  default,  without 
covenant  to  pay  interest,  but  may  be 
recovered  as  damages.  Nor  in  an 
action  for  nioney  lent,  unless  there 
has  been  an  usage  to  that  effect 
(Alton  v.  Bragg,  15  East,  223;  Shaw 
V.  Picton,  4  B.  &  C.  723);  or  for 
money  had  and  received  (Walker  v. 
Constable,  1  B.  &  B.  306);  even 
though,  by  the  course  of  dealing  be- 
tween the  defendant  and  the  person 
from  whom  the  money  was  received 
to  the  plaintiff's  use,  the  sum  would 
have  borne  interest:  for  no  right 
passed  to  the  plaintiff  but  a  right  to 
demand  the  sum  actually  in  the 
defendant's  hands.  Freeling  v. 
Schroeder,  2  Bing.  N.  C.  79.  And 
it  makes  no  difference  that  the 
money  has  been  obtained  by  fraud 
(Crockford  v.  Winter,!  Camp.  124); 
nor  in  actions  for  money  paid  (Carr 
V.  Edwards,  3  Stark.  132;  Hicks  v. 
Mareco,  5C.  &P.  498);  or  on  account 
stated  (Nicholv.  Thompson,  1  Camp. 
52;  Cralie  v.  Duke  of  York,  6  Esp. 
45;  Blaney  v.  Hendricks,  2  W.  Bl. 


761;  contra.  Abbot,  C.  J.,  2  C.  &  B. 
819);  or  for  goods  sold,  even  though 
to  be  paid  for  on  a  particular  day. 
Gordon  v.  Swan,  12  East,  419. 
Mountford  v.  Willes,  2  B.  &  P.  337, 
merely  decides  that  if  the  jury  allow 
interest  —  which  they  clearly  may 
do  as  damages  —  the  court  will  not 
disturb  their  verdict,  though  it  is 
otherwise  where  the  payment  was 
to  be  made  by  bill.  Nor  in  an  action 
for  work  and  labor  (Trelawney  v. 
Thomas,  1  H.  Bl.  303;  Milsom  v. 
Hay  ward,  9  Price,  134);  nor  on 
money  lying  with  a  banker  (Ed- 
wards V.  Vere,  5  B.  &  Ad.  232);  nor 
upon  a  policy  of  insurance  (Kings- 
ton V.  Mcintosh,  1  Camp.  518;  Bain 
V.  Case,  3  C.  &  P.  496);  nor  are  an- 
nuitants entitled  to  interest  on  the 
arrears  of  theii"  annuities."  Earl  of 
Mansfield  v.  Ogle,  4  D.  G.  &  J.  41; 
Booth  V.  Carleton,  30  L.  J.  Ch.  178; 
Blogg  V.  Johnson,  L.  R.  2  Ch.  225. 

1  Thomas  v.  Weed,  14  John.  255. 

2Trouer  v.  Sharp,  4  J.  J.  Marsh. 
79. 

3Higley  v.  First  Nat.  Bank,  26 
Ohio  St.  75. 

4  State  v.  Steen,  14  Tex.  396. 

5  Little  V.  Banks,  85  N.  Y.  267; 
Winch  V.  Mutual  B.  I.  Co.  86  N.  Y. 
618;  French  v.  French,  126  Mass. 
360. 


INTEEEST   AS    COMPENSATION.  599 

the  condition  equals  or  exceeds  ttie  penalty,  whether  recovery 
beyond  the  penalty  can  be  had  by  adding  interest  from  the  date 
of  the  breach,  where  such  damages  are  of  such  a  nature  as  to 
bear  interest.^  But  the  American  courts  are  now  nearly  agreed 
that  interest  on  the  penalty  in  such  cases  may  be  recovered.- 

Interest  is  allowed  against  the  state  or  United  States  the 
same  as  against  natm'al  persons ;  *  but  unless  expressly  agreed 
to  be  paid,  it  will  only  accrue  after  demand.*  And  there  is  the 
same  hmitation  on  the  hability  of  lesser  political  corporations ;  ^ 
and  a  further  Ihnitation  growing  out  of  the  restrictions  to  which 
they  are  subject  in  raising  as  well  as  in  disbursing  funds.  It  has 
also  been  held  that  interest  is  not  allowed  against  infants.^ 

Allowed  on  jtdgmexts. —  A  judgment  is  a  debt  of  record 
having  like  incidents  as  other  debts,  including  that  of  bearing 
interest.''  It  is  allowed  on  common  law  principles,  in  an  action 
for  the  detention  of  the  money ;  though  it  is  not  collectible  on 
execution  as  interest  or  as  damages,  unless  authorized  by  stat- 
ute,^ or  unless  it  bears  interest  on  its  face.  In  the  absence  of 
any  statute  authorizing  the  collection  of  interest  upon  execution, 
that  which  accrues  between  the  rendition  and  collection  of  w 

1  See  Hellen  v.  Ardley,  3  C.  &  P.  shall,  26  Wend.  404;  Thorndike  v. 
12;  Lonsdale  v.  Church,  2  T.  R.  388;  United  States,  2  Mason,  1.  But  see 
Brangwin  v.  Perrott,  2  W.  Bl.  1190;  Gordon  v.  United  States,  7  Wall.  188; 
Clark  V.  Bush,  3  Cow.  151;  McClure  and  Tillson  v.  U.  S.  100  U.  S.  43. 

V.  Dunkin,  1  East,  436;  Francis  v.  ■*  Attorney  General  v.  Cape   Fear 

Wilson,   Ry.   &  M.  105;    Harris  v.  Nav.  Co.  2  Ired.  Eq.  444;  Milne  v. 

Clap,  1  Mass.  308:  United  States  v.  Rempublican,  3  Yeates,  102;  Adams 

Arnold,  1  Gall.  318;  Fairlie  v.  Law-  v.   Beach,    6    Hill,   27;    Auditor    v. 

son,  5  Cow.  424;  Eraser  v.  Little,  13  Dugges,   3    Leigh,   241;    Pawlet    v. 

Mich.  195.  Sandgate,  19  Vt.  62;  United  States 

2  Harris  v.  Clap,  siipra;  Brainard  v.  Hoar,  2  Mason,  314;  State  v. 
V.  Jones,   18  N.  Y.    35;  Hughes  v.  Mayes,  28  Miss.  709. 

Wickliffe,  11  B.  Mon.  202;  Carter  v.  sBeals  v.  Supervisors,  28  Cal.  449; 

Thorn,   18  B.    Mon.    613;    Bank    of  Soher  v.  Supervisors,   39  Cal.    134. 

Briglitou  V.   Smith,  12  Allen,  243;  See  Dyer  v.  Covington,  19  Pa.  St. 

McGill  V.  Bank  of  United  States,  12  200. 

Wheat.    511;    Ives    v.     Merchants'  6  Taf t  v.  Pike,  14  Vt.  405. 

Bank,  12  How.  U.  S.    159;  Warner  7  Benkard  v,  Babcock,  27  How.  Pr. 

v.  Tliurlo,  15  Mass.  154.  391. 

3Respublica    v.   Mitchell,  2  Ball.  ^Perkins  v.  Fourniquet,  14  How. 

101;  People  V.  Canal  Commissioners,  U.   S.   328;    Mehau    v.   Brown,    10 

5  Denio,  401;  Canal  Com.  v.  Kemp-  Gratt.  612. 


600 


INTEEEST. 


judgment  is  lost;  or,  in  other  words,  since  sucli  interest  is 
allowed  only  as  damages,  it  can  be  obtained  only  by  suit.  The 
very  sum  in  the  judgment  is  the  amount  to  be  collected  by  exe- 
cution, unless  a  statute  exists  authorizing  the  officer  to  com- 
pute and  collect  it.^  Indebitattis  asswnpsit  will  not  lie  to  collect 
it.2  And  the  claim  for  it  will  be  extinguished  by  collection  or 
payment  of  the  principal  to  which  it  is  incident.^  Some  cases 
are  to  be  found  Avhich  deny  that  judgments  bear  interest.* 
Considering  the  hostility  of  the  early  common  law  to  interest, 
it  is  easy,  of  com^se,  to  maintain  on  its  principles  any  proposi- 
tion adverse  to  interest.  But  on  the  principle  now  universally 
admitted,  that  on  all  liquidated  sums  interest  may  be  recovered 
after  the  date  when  it  was  the  duty  of  the  debtor  to  pay, 
judgments  will  carry  interest.  And  it  is  believed  that  generally 
it  is  held  that  interest  is  recoverable  both  on  judgments  and 
decrees,^ 


1  Id. ;  Solon  v.  Virginia,  etc.  E.  R. 
Co.  14  Nev.  405. 

2Bee(lle  v.  Grant,  1  Tyler  (Vt.),  423. 

3Seepost,  p.  677. 

*  Perkins  v.  Fourniquet,  14  How. 
U.  S.  328;  Homer  v.  Kirkwood,  25 
Miss.  96;  Easten  v.  Vandorn,  Walk. 
(Miss.)  214;  Sewell's  Case,  37  Mo. 
448;  Williamson  v.  Broughton,  4 
McCord,  123.  See  Harrington  v. 
Glenn,  1  Hill  L  (S.  C.)  53:  Thomas 
V.  Wilson,  3  McCord,  105;  Lumbkin 
V.  Nance,  1  Brev.  514;  Todd  v. 
Botchford,  86  N.  Y.  517. 

5Beall  V.  Silver,  2  Rand.  401; 
Roan's  Adm.  v.  Drummond's  Adm. 
6  Rand.  182;  Clarke's  Adm.  v.  Day,  2 
Leigh,  172;  Marshall  v.  Dudley,  4  J. 
J.  Marsh.  244;  Mercer,  Adm.  v.  Beall, 
4  Leigh,  189;  Laidley  v.  Merrifleld,  7 
Leigh,  346;  Klock  v.  Robinson,  22 
Wend.  157;  Nunnellee  v.  Morton, 
Cooke  (Tenn.),  21;  Gwinn  v.  Whit- 
taker,  1  Harr.  &  J.  754;  Say  re  v. 
Austin,  3  Wend.  496;  Smith,  Adm.  v. 
Todd's  Ex.  3  J.  J.  Marsh.  306;  Hodg- 
den  V.  Hodgden,  2  N.  H.  169;  Hud- 
son V.  Daily,  13  Ala.  742;  Hopkins  v. 


Shepard,  129  Mass.  600.  In  Admin- 
istrator of  Pinckney  v.  Singleton, 
Ex'r,  2  Hill,  S.  C.  52,  it  was  said: 
' '  At  common  law  no  interest  could 
be  collected  upon  an  execution,  un- 
der a  judgment;  but  intei'est  was 
recoverable  in  an  action  of  debt  on 
judgment,  and  by  commencing  such 
an  action,  the  plaintiff  obtains  an  in- 
choate right  to  the  interest,  which 
cannot  be  defeated  by  a  subsequent 
payment.  And,  therefore,  where  an 
action  of  debt  on  judgment  was 
commenced  against  an  administra- 
tor suggesting  a  devastavit,  al- 
though the  administrator,  after  suit 
brought,  paid  the  amount  of  the 
judgment  and  costs  with  interest  on 
the  original  cause  of  action,  it  was 
held,  that  the  plaintiff  might  still 
go  on  to  recover  the  interest  on  the 
entire  amount  of  the  judgment  (in- 
cluding the  principal  and  interest), 
and  the  court  will  not  preclude  him 
from  this  right  by  ordering  satisfac- 
tion to  be  entered  on  the  judgment." 
In  Crawford  v.  Ex'r  of  Simonton, 
7  Port.  110,  Collier,  J.,  reviewed  the 


ENTEKEST   AS    COMPENSATION. 


GOl 


authorities  and  stated  the  law  on 
this  subject:  "Damages  in  lieu  of 
interest  are  allowed  at  common  law 
for  a  default  to  pay  money  or  de- 
liver property,  upon  the  principle 
that  the  creditor  should  be  com- 
pensated for  the  want  of  punctual- 
ity in  his  debtor  in  keeping  him  out 
of  the  use  of  the  money  or  property. 
McWhorter  v.  Standifer,  3  Port. 
519.  Accordingly,  it  has  been  held 
that  interest  is  allowed  on  judg- 
ments, at  common  law,  to  the  time 
of  affirmance,  or  of  .a  new  judgment 
rendered.  Zink  v.  Laugton,  2  Doug. 
749.  By  the  rules  of  the  common 
law.  Lord  EUenborough  considered 
it  to  be  within  the  general  province 
of  a  jmy  to  give  damages  for  the  de- 
tention of  a  debt,  and  he,  therefore, 
sustained  a  verdict  which  allowed  in- 
terest on  a  statutable  ascertainment 
of  damages,  for  an  injury  to  indi- 
vidual i^roperty,  occasioned  by  a 
public  imiirovement  made  by  a  cor- 
poration (1  M.  &   Sel.  171);  and  in 

7  Har.  &  J.  755,  it  is  said  that  both 
by  the  decision  of  the  court  of 
Maryland,  and  the  English  courts, 
every  judgment  for  money  carries 
interest,  unless  otherwise  agreed  by 
the  parties,  or  its  terms  forbid  it.  So 
in  North  CaroUna,  it  has  been 
holden  that  a  plaintiff  is  entitled  to 
interest  on  his  judgment  if  a  new 
action  is  brought,  up  to  the  time  of 
the  rendition  of  the  new  judgment. 
^  Hayw.  26,  378;  Thomas  v.  Ed- 
wards, 3  Ans.  804;  Butler  v.  StouUit, 

8  Moore,  472;  P^pscott  v.  Parker,  4 
Mass.  170.  In  Atkinson  v.  Bray- 
brooke,  4  Camp.  380,  Lord  Ellen- 
borough  considered  that  interest  was 
not  in  general  recoverable  on  a 
foreign  judgment  because  it  was  a 
simple  contract.  S.  P.  3  Price,  350. 
But  in  McClure  v.  Dunkin,  1  East, 
436,  the  court  of  king's  bench  deter- 
mined that,  in  assumpsit  on  a  judg- 


ment rendered  in  Ireland,  it  was 
competent  to  the  jury  to  allow  inter- 
est to  the  plaintiff,  and  that  in  that 
respect  there  was  no  difference  be- 
tween a  foreign  judgment  and  a 
judgment  in  a  court  of  record  in 
England.  The  only  adjudication  to 
the  contrary  is  a  case  in  4  McCord, 
212,  which  is  deemed  outweighed  by 
the  authorities.  In  Moore  v.  Patten, 
2  Port.  451,  it  was  determined  that  a 
juiy  might,  in  their  discretion, 
aUow  interest  upon  unsettled  ac- 
counts for  goods,  wares,  etc.,  from 
the  time  they  became  due.  And  in 
Tate  V.  Innerarity,  1  Stew.  &  Port. 
33,  it  was  adjudged  competent,  upon 
common  law  principles,  for  parties 
to  stipulate  for  the  payment  of  a 
reasonable  rate  of  interest,  and 
where  it  was  not  ascertained  by 
contract,  the  rate  might  be  fixed  by 
the  custom  of  the  place  where  the 
contract  was  made. 

' '  From  the  decisions  we  have  no- 
ticed, we  educe  as  applicable  to  the 
case  at  bar,  the  rule.  That  the  allow- 
ance of  interest,  except  upon  the  pai'- 
ticular  habilities  embraced  by  stat- 
ute, must  depend  upon  the  circum- 
stances of  the  case.  To  avoid  its 
payment,  it  is  competent  for  the  de- 
fendant to  show  that  he  is  not  in 
fault  for  the  non-payment  of  the 
princiiDal  sum,  or  that  the  plaintiff 
had  been  absent  from  the  country, 
without  having  left  a  known  agent, 
etc. ;  but  if  the  defendant  offers  no 
excuse  for  the  delay,  the  plaintiff  is 
entitled  to  receive  interest  as  dam- 
ages." 

In  Himely  v.  Rose,  5  Cranch,  313, 
it  was  held  that  if  property  ordered 
to  be  restored  be  sold,  interest  is  not 
to  be  paid  unless  specially  ordered 
by  the  decree.  Marshall,  C.  J.: 
"  Restitution  of  the  cargo  was 
awarded.  The  property  having 
been  sold,   the    money    proceeding 


602 


INTEKEST. 


•  Although,  in  a  judgnient,  the  amount  of  prhicipal  and  inter- 
est are  stated  separately,  the  whole  judgment  bears  interest.^  A 
creditor,  holding  a  foreign  judgment,  came  in  under  a  creditor's 
bill  and  proved  his  demand ;  and  it  was  held,  that  he  should  bo 
allowed  interest  on  the  judgment  from  the  time  it  was  rendered, 
without  inquiry  whether  or  not,  by  the  law  of  the  country  where 
it  was  rendered,  the  judgment  bore  interest.^  After  judgment 
against  a  corporation,  interest  is  computed  thereon  in  an  action 
against  a  stockholder.^  In  Illinois,  a  decree  draws  interest  at 
the  statutory  rate,  and  this  cannot  be  increased  by  adopting  the 
contract  rate,  even  by  consents 

It  seems  to  have  been  the  former  practice  in  Kentucky,  prior 
to  the  statute  of  1837,  giving  interest  on  judgments  and  decrees, 
and  in  some  other  states,  to  adjudge  "  accruing  "  interest  on  debts 
which  by  the  terms  of  the  agreement  were  to  bear  interest  "  until 


from  the  sales  is  substituted  for 
the  specific  articles.  If  this  money 
remains  in  the  possession  of  the 
court,  it  carries  no  interest;  if  it  be 
in  the  hands  of  an  individual,  it  may- 
bear  interest,  or  otherwise,  as  the 
court  may  direct." 

In  Cox  V.  Marlatt,  36  N.  J.  L.  389, 
the  court  say:  "Our  practice  lias 
been,  for  many  years,  independent 
of  any  express  statute,  to  allow  inter- 
est to  be  levied  under  execution  as 
an  incident  to  the  judgment,  and  as 
an  increase  of  damages  for  the  de- 
tention of  the  debt,  without  bring- 
ing a  distinct  action  for  the  interest 
as  damages  for  such  detention." 
See  Todd  V.  Botchford,  83  N.  Y.  517. 

1  Coles  V.  Kelsey,  13  Tex.  75.  A 
verdict  wiU  not  be  vitiated  by  in- 
cluding improper  interest,  separately 
stated  from  any  other  sum  found, 
nor  for  assuming  to  direct  that  pros- 
pective interest  be  allowed;  the  ex- 
cessive interest  or  the  impertinent 
direction  that  the  sum  found  bear 
interest  in  the  future,  may  be 
stricken  out  or  disregarded  as  sur- 
plusage.    Brugh  V.  Shanks,  5  Leigh, 


598.  "Wliere  a  petition  sets  forth  the 
recovery  of  judgment  for  a  certain 
sum',  without  stating  the  rate  of  in- 
terest it  is  entitled  to  draw;  but  the 
plaintiff  in  his  petition  demanded 
judgment  for  the  amount  of  the  re- 
coveiy,  with  interest  thereon  at  ten 
per  cent,  from  a  day  therein  stated, 
the  record  showing  a  submission  of 
the  cause  to  the  court  by  the  parties, 
and  the  rendition  of  a  judgment  for 
the  original  judgment,  with  ten  per 
cent,  interest,  without  exception,  it 
was  considered  that  the  demand  for 
ten  per  cent,  would  authorize  the  in- 
troduction of  proof  of  that  rate,  and 
that  the  production  of  such  proof 
should  be  presumed.  Haskins  v. 
Alcott,  13  Ohio  St.  210. 

2  Nelson  v.  Felden,  7  Rich.  Eq.  394; 
Warren  V.  McCarty,  25111.  95;  Prince 
V.  Lamb,  Breese,  378;  Fonville  v. 
Monroe,  74  lU.  126;  Talbot  v.  Nat. 
Bank,  129  Mass.  67;  Williams  v. 
American  Bank,  4  Met.  317;  Bar- 
ringer  V.  King,  5  Gray,  9. 

3  Grand  v.  Tucker,  5  Kan.  70. 

*  Haas  V.  The  Chicago  Society,  20 
III  248. 


INTEREST   AS    COMPENSATION.  603 

paid."  Tliis  practice  was  to  adjudge  interest  from  the  date  when 
it  was  provided  by  agreement  to  commence  without  any  com- 
putation to  the  rendition  of  the  judgment,  and  it  was  not  in- 
cluded with  the  principal  sum  recovered ;  when  the  judgment 
was  collected  or  paid,  the  interest  was  computed  according  to  the 
agreement  and  judgment,  vrithout  rest  at  the  time  of  the  judg- 
ment. But  where  interest  was  recoverable  as  damages,  it  was 
embraced  in  the  judgment.  Literest  on  judgments  in  that  state 
prior  to  1837,  as  damages  for  detention  of  the  money,  was  not 
matter  of  right,  but  discretionary.^  Judgments  upon  contracts 
stipulating  a  certain  ra-te  of  interest  until  the  debt  should  be 
paid,  were  entered  for  accruing  interest.  The  court  entered  judg- 
ment for  the  debt  in  the  declaration  mentioned,  and  also  the  legal 
or  conventional  interest  from  the  time  the  debt  was  due  and  pay- 
able, or  the  interest  stipulated  to  be  given  commenced,  until 
the  payment  should  be  made.^  And  since  the  statute  of  1S3T, 
giving  interest  on  aU  judgments,  it  is  error  to  render  judgment 
in  a  suit  on  a  bill  of  exclmnge,  for  principal  and  interest,  by  way 
of  damages,  by  which  interest  would  run  after  judgment  by 
force  of  the  statute.^  In  debt  on  a  judgment  bearing  interest, 
if  the  plaintiff  demanded  only  principal  and  interest  accrued  at 
the  commencement  of  the  action,  he  could  not  have  judgment 
for  accruing  interest.*     But  generally  under  statutes  allowing 

iLair  V.  Jelf,  3  Dana,  181;West  V.  *  Caldwell  v.  Richards,  2  Bibb, 
Patrick's  Adm'r,  1  J.  J.  Marsh.  95;  333.  Where  a  creditor  obtains  a 
Shockey's  Adm'r  v.  Glasford,  6  judgment  at  law,  and  then  came 
Dana,  16;  Marshall  v.  Dudlej^,  4  J.  into  a  court  of  equity  to  foreclose  a 
J.  Marsh.  245;  Caldwell  v.  Richards,  mortgage  for  the  same  debt,  it  was 
2  Bibb,  331;  Guthrie  v.  Wickliife,  4  held  that  interest  should  not  be  de- 
Bibb,  542;  Smith's  Adm'r  v.  Todd's  creed,  the  judgment  not  bearing  in- 
Ex'r,  3  J.  J.  Marsh.  306;  Bartlett  v.  terest;  but  the  judgment  be  taken 
Blanton,  4  J,  J.  Marsh.  440;  Mc-  as  the  amount  to  be  paid.  Heydalev. 
Millan  v.  Scott,  1  T.  B.  Mon.  150.  Hazlehurst,  4  Bibb,  19.    SeeBrigham 

2  Harden  v  Major,  4  Bibb,  104;  v.  Van  Buskirk,  6  B.  Mon.  197,  liold- 
Taul  V.  Moore,  Hardin,  90;  Cotton  v.  ing  that  by  the  statute  of  1837  the  in- 
ReaviU,  2  Bibb,  99;  Russell  v.  Shep-  tention  was  to  establish  the  princi- 
herd,  Hardin,  44;  Harper  v.  Bell,  2  pie  that  debts,  established  by  judg- 
Bibb,  221;  TroxweU  v.  Fugate,  ment  or  decree,  should  bear  interest 
Hardin,  2.  See  Henderson  v.  Desha,  from  that  time,  unless  by  the  terms 
Hemp.  C.  C.  231;  but  see  also  Byrd  of  the  judgment  they  bear  interest 
V.  Gasquet,  id.  261.  from  a  prior  day. 

3  Chamberlain  v.   Maitlaud,   5  B. 
Mon.  448. 


604:  INTEREST. 

judgments  to  be  taken  upon  contracts,  to  bear  interest  there- 
after at  the  contract  rate,  the  correct  rule  is  to  add  the  interest 
due  on  the  principal  up  to  the  time  of  the  judgment  to  the  prin- 
cipal, and  enter  the  judgment  for  the  gross  amount;  and  this 
judgment,  including  both  principal  and  interest,  is  then  to  bear 
the  same  interest  stipulated  in  the  contract  until  the  debt 
is  paid.^ 

Equity  follows  the  law  and  allows  interest  in  like  cases.^ 
On  debts  on  which  interest  would  be  given  as  damages  at 
law,  interest  is  decreed  in  chancery  down  to  the  time  of  the 
decree.^ 

Interest  is  also  allowed  on  assessment  of  damages  in  the  exer- 
cise of  the  power  of  eminent  domain,  if  the  property  has  then 
been  taken,^  and  will  be  allowed  during  the  pendency  of  an 
appeal  if  the  report  be  confirmed.^  Interest  will  be  controlled 
by  circumstances.  If  the  owner  has  had  the  profitable  use  of 
the  premises,  or  has  received  the  rents  pending  the  appeal,  these 
circumstances  should  be  taken  into  account,  and  interest  abated 
accordingly,^  So  if  the  owner  appeals  and  is  the  sole  occupant, 
interest  should  not  be  allowed  J  But  if  the  condemning  -psbrtj  also 
appeals,  interest  should  be  allowed  where  collection  is  thereby 
stayed.^  But  until  possession  is  taken,  interest  is  not  allowed ; 
until  then  there  is  a  loeus  penitentia  to  those  moving  the  con- 
demnation,^ and  the  money  is  not  considered  as  detained. ^"^   If 

'  Guy   V.    Franklin,    5    Cal.   416;  v  South  Park  Commissioners,  61  111. 

Emeric  v.  Tarns,  6  id.  155;  McCann  115;  Commonwealth  v.  Boston,  etc. 

V.  Lewis,  9  id.  246;  Mount  v.  Cliap-  R.  R.  3  Cush.  35;  Chicago  v  Palmer, 

man,  id.  297;  Corcoran  v.  Doll,  S3  id.  93  111.  135;  Reed  v.  Hanover  Branch 

83;  Bibend  v.  Liverpool,  etc.  Ins.  Co.  R.  R.  Co.  105  Mass.  303;  Atlantic  & 

30  id.  78;  Coles  v.  Kelsey,  13  Tex.  75.  G.  W.  R.  R.  Co.  v.  Koblentz,  31  Oliio 

2  Samuel  v.  Minter,  3  A.  K.  Marsh.  St.  334.     See  South  Park  Com.  v. 

480;  Mc Alexander  v.  Lee,  3  A.  K.  Dunlevy,  91  lU.  49. 

Marsh.  483;   Moore  v.  Pendergrast's  5  The  Illinois  &  St.  L.  R.  R.  Co.  v. 

Heirs,  6  J.  J.  Marsh.  534;  Taylor  v.  McClintock,   68    111.   296;    Beebe  v. 

Knox's  Ex'rs,   5  Dana,   466;  Ham-  Newark,  4  Zab.  47. 

mond  V.  Hammond,  3  Bland's  Ch.  6]\Xetler  v.  Easton,  etc.  R.  R.  Co. 

306.  36  N.  J.  L.  223. 

3Deany  v.    Scriba,    3    CaU,    415;  "Id. 

Dawson    v.   Clay's    Heirs,    1    J.   J.  ^Id. 

Marsh.  165;  Lair  v.  Jelf,  3  Dana,  181;  ^  Chicago  v.  Barbian,  80  111.  483. 

Hughes  V.  Staudef ord,  id.  385.  lo  Fisk  v.  Chesterfield,  14  N.  H.  340; 

4  Stewart  v.  County,  3  Pa.  St.  340;  but  see  Beveridge  v.  West  Chicago 

aough  V.  Unity,  18  N.  H.  75;  Cook  Park  Com.  100  lU.  75. 


mXEEEST   AS    COMPENSATIOIT.  605 

the  first  assessment  is  set  aside  on  motion  of  a  railroad  corpora- 
tion, ^iiich  has  taken  proceedings  for  condemnation  of  private 
property,  and  has  taken  possession,  it  is  competent  for  the  jury, 
in  making  a  second  assessment,  to  allow  and  include  in  their 
verdict  interest  from  the  time  when  the  possession  was  taken ; 
although  the  company  had  paid  into  court  the  amount  of  the 
damages,  and  the  sum  had  continued  to  be  retained  by  the 
court.^  The  state  is  liable  to  pay  interest  upon  the  amount  of  a 
legal  appraisement  of  damages  for  land  taken  for  public  use, 
only  after  a  demand  made  by  the  party  entitled,  of  the  officers 
of  the  law  charged  with  the  duty  of  making  payment.^  Taxes 
do  not  draw  interest  as  contracts,  and  only  when  it  is  expressly 
given  by  statute.^ 

Is'oT    ALLOWED    ON    REVIVAL    OF    JTTDGMENT    BY    SCIRE    FACIAS. 

Accrued  interest  on  a  judgment  is  lost  by  reviving  it  by  scire 
facias.  All  the  authorities  agree  that  the  judgment  in  such  pro- 
ceedings does  not  include  interest  on  the  judgment  revived ;  the 
party  reviving  only  obtains  execution  of  the  judgment  without 
interest.*  And  it  has  been  held,  in  Yermont,  that  the  revival 
of  the  judgment  by  such  process  is  a  final  waiver  and  renuncia- 
tion of  the  interest  ^vhich  had  accrued  up  to  the  time  of  the 
new  judgment  on  the  scire  facias  J" 

1  Atlantic  &  G.  W.  R.  E.  Co.  v.  none.  The  object  of  the  suit  is 
Koblentz,  21  Ohio  St.  334;  Beebe  v.  merely  to  revive  the  judgment,  and 
Newark,  supra.  no  interest  can  be  added  to  it;  exe- 

2  People  V.  Canal  Commissioners,  cution  upon  the  judgment  in  scire 
5  Denio,  401.  facias  must  issue  for  the  same  sum 

3  Danf orth  v.  Williams,  9  Mass.  of  the  original  judgment.  At  com- 
324;  Haskell  v.  Bartlett,  34  Cal.  281;  mon  law,  not  only  could  no  damages 
Himmelman  v.  Oliver,  34  Cal.  246;  be  recovered,  but  no  costs,  tmtil  the 
Periy  v.  Washburn,  20  Cal.  318,  350;  statute  of  8  &  9  Wm.  3,  ch.  11, 
Perry  Co.  v.  Selma,  etc.  R.  R.  Co.  which  provides  for  costs.  14  Peters- 
65  Ala.  391.  dorf,  386. 

4  Anonymous,  Mart.  &  Hay  w.  182;  "As  the  debtor  had  been  dis- 
Mann  v.  Taylor,  1  McCord  L.  113.  charged  on  habeas  corpus,  no  good 
See  Ban-on  v.  Moi-rison,  44  N.  H.  reason  is  now  perceived  why  the 
226.  oratrix  might  not  have  brought  debt 

5  Hall  V.  Hall,  8  Vt.  156.  In  this  upon  the  judgment.  Scire  facias 
case,  Rodfield,  chancellor,  said:  "It  is  the  most  common,  although  not 
is  well  settled  that  on  scire  facias,  the  exclusive  remedy.  But  the  judg- 
to  revive  a  judgment,  no  damages  ment  having  been  revived  by  scire 
can  be  awarded.    The  writ  claims  facias,  the  plaintiff  failed,  of  course, 


60t) 


INTEREST. 


But  it  is  held  in  Pennsylvania  that  bringing  scire  facias  does 
not  extinguish  the  right  to  interest.  Where  a  judgment  had 
been  several  times  so  revived,  the  plaintiff,  in  an  action  on  the 
judgment,  was  decided  to  have  a  right  to  charge  interest  on  the 
ao-o-regate  amount  of  principal  and  interest  due  at  the  time  of 
rendering  judgment  on  each  scire  facias} 

Allowed  on  sums  duk  for  rent. —  Interest  is  allowable  in 
personal  actions  for  tlie  recovery  of  specific  sums  agreed  to  be 
paid  for  rent,  after  the  same  become  due  and  in  arrears,  on 
the  same  principles  that  apply  to  other  debts  after  it  becomes  the 
debtor's  duty  to  pay.^    In  JSTew  York,  it  is  settled  that  when  the 


of  obtaining  execxition  of  the  inter- 
est which  had  accrued;  and,  we 
think,  thus  lost  the  claim  of  interest. 
It  will  not  be  allowed  to  separate 
the  intorest  from  the  debt,  of  which 
it  is  a  mere  incident.  The  judgment 
upon  the  scire  facias  so  far  merged 
the  judgment  for  the  alimony,  that 
the  portion  not  recovered  by  the 
levy  was  gone.  It  became  a  new 
debt,  and  could  never  be  declared 
upon  as  a  judgment  of  any  other 
term  than  that  of  the  judgment  on 
the  scire  facias.'''' 

'  Fries  v.  Watson,  5  S.  &  R.  230. 
See  Measoa's  Estate,  4  Watts,  341. 

2EIkin  T.  Moore,  6  B.  Mon.  462; 
Honore  v.  IMurray,  3  Dana,  31; 
Walker  v.  Hadduck,  14  111.  399;  Buck 
v.  Fisher,  4  Whart.  516;  Ten  Eyck 
V.  Houghtaling,  12  How.  Pr.  523; 
Obermeyer  v.  Nichols,  6  Binn.  159; 
Cook  v.  Farinholt,  3  Ala.  3S4;  Naglee 
V.  IngersoU,  7  Pa."  St.  185;  Clark  v. 
Barlow,  4  John.  183;  Dennison  v. 
Lee,  6  Gill  &  John.  383;  West  Chi- 
cago A.  V/.  V.  Sheer,  8  Bradw.  367. 
lu  Jackson  v.  Wood,  24  Wend.  443, 
it  was  held  that  in  ascertaining  the 
mesne  profits  or  the  rents  of  prem- 
ises situate  in  New  York  city,  inter- 
est may  be  computed  upon  rents 
from  the  expiration  of  the  quarter 
days  when  payable. 


In  Stockton's  Adni'r  v.  Guthrie,  5 
Harr.  (Del. )  204,  it  was  held  that  in- 
terest is  recoverable  for  arrears  of 
rent  payable  in  money  on  a  day  cer- 
tain, though  the  letting  be  by  parol 
from  year  to  year.  Bayard,  J.:  "It  is 
sufficient  to  determine  that  in  this 
state,  whenever  a  sum  certain  is 
payable  by  contract  on  a  day  cer- 
tain, interest  is  recoverable  of  right 
against  the  party  in  default;  and  this 
whether  the  contract  be  under  seal 
in  writing  or  merely  verbal.  The 
interest  is  allowed  as  a  legal  inci- 
dent to  the  principal  sum  existing 
from  the  default  in  the  non-per- 
formance of  his  contract  by  the 
debtor,  whenever  there  is  a  cer- 
tainty in  the  sum  to  be  paid  and  the 
time  of  payment;  nor  can  any  suffi- 
cient reason  be  given  for  a  distinc- 
tion in  the  allowance  of  interest  be- 
tween contracts  for  the  payment  of 
money  under  seal,  or  in  writing,  and 
verbal  contracts. 

"The  contract  being  valid,  the 
breach  is  as  injurious  to  the  creditor 
in  the  one  case  as  in  the  other,  and 
the  exact  character  of  the  act  or 
duty  to  be  performed  as  fully  ascer- 
tained in  the  one  case  as  the  other, 
and  the  consequences  of  the  default 
should,  therefore,  be  the  same. 

"There  wovild  seem  to  be  but  one 


INTEEEST   AS   COMPENSATION. 


007 


rent  is  payable  in  specified  kinds  of  property,  wliicli  tlie  tenant 
lias  failed  to  deliyer  and  pay,  interest  is  recoyerable  on  the  value 
of  the  rent  from  the  time  it  l>ecame  payable.^  "When,  however, 
the  landlord  seeks  his  remedy  for  rent  by  distress  or  by  re-entry 
to  hold  until  the  arrears  are  paid,  this  remedy  does  not  extend 
to  the  interest.- 


exception  to  tliis  rule,  and  that  is 
wliere  interest  becomes  due  ou  a 
principal  sum  on  a  day  certain;  yet 
interest  on  the  interest  so  in  arrears, 
is  not  recoverable.     This  exception 
is  founded  on  the  statute  which  pro- 
hibits the  taking  of  moi'e  than  a  cer- 
tain rate  of  interest  for  the  use  or 
loan  of  money;  and  until  the  inter- 
est in  arrears  is  severed  from  the 
principal  sum  by  the  agreement  of 
the  parties,  it  has  been  held  that  it 
cannot  be  treated  as  a  new  loan. 
Arrears  of  rent,  however,  have  no 
analogy  to  airears  of  interest,  and 
fall  neither  within  the  words  or  in- 
tent of  the  statute.     In  the  case  of 
lands,  whether  the  fee  or  a  life  es- 
tate be  parted  with,  there  can  be  in 
reason  no  difference  in  the  right  to 
interest  on  the  sum  payable  for  the 
estate  acquired    by  the  vendee  or 
tenant;    provided  it    is  payable  in 
money  on  a  day  certain,    and  no 
question  could  be  made  as  to  the 
right  of  the  vendor  to  recover  in- 
terest on  the  unpaid  purchase  money 
of  land,  sold  in  fee,  from  the  time  it 
became  i:)ayable,  whether  there  was 
an  express  stipulation  for  the  pay- 
ment of  interest  or  not.     Nor  can 
any  difference  or  distinction  as  to 
the  right  to  interest  arise  from  the 
fact,  that  no  greater  estate  at  law  in 
lands  can,  in  Delaware,  be  granted 
than  for  one  year,  except  by  deed; 
for  the  estate  acquired  by  the  ten- 
ant from  year  to  year,  holding  un- 
der a  verbal  contract,    for  a  sum 
certain,  is  just  as  valid  as  that  ac- 


quired by  the  lessee  for  a  term  of 
years,  or  a  vendee  in  fee,  under  a 
demise  or  conveyance  by  deed.  The 
tenant  equally  with  the  lessee  for 
years,  or  the  vendee,  acquires  the 
estate  for  which  he  is  to  pay  by  a 
contract  ascertaining  and  fixing  the 
sum  to  be  paid,  and  the  day  of  pay- 
ment, and  in  default  of  payment, 
interest  should  equally  follow  as  of 
right  in  either  case.  It  may  be  ob- 
served, that  the  allowance  of  inter- 
est is,  in  general,  a  nile  of  practice 
(In  re  Badger,  2  Barn.  &  Aid.  691, 
and  Windle  v.  Andrews,  Ibid.  G!)6); 
and  in  this  state,  the  practice  of 
allowing  interest  on  arrears  of  rent 
has  been  uniform  and  settled."  But 
see  Breckenridge  v.  Brooks,  2  A.  K. 
Marsh.  335;  Cooke  v.  Wise,  3  Hen. 
&  M.  463;  Skipweth  v.  Clinch,  2 
CaU,  253;  Graham  v,  Woodson,  2 
Call,  249;  Kyle  v.  Roberts,  Ex'r, 
6  Leigh,  495;  Van  Rensselaer  v. 
Platner,  1  John.  276;  Do  we  v. 
Adams,  Adm'r,  oMunf.  21. 

1  Lusk  V.  Druse,  4  Wend.  313;  Van 
Rensselaer  v.  Jones,  2  Barb.  643; 
Livingston  v.  Miller,  11  N.  Y.  80; 
Van  Rensselaer  v.  Jewett,  2  N.  Y. 
135;  S.  C.  5  Denio,  135;  Vaughan  v. 
Howe,  20  Wis.  523;  Gammon  v. 
Abrams,  53  Wis.  323. 

2  Lansing  v.  Rattoone,  6  John.  42; 
Longuell  v.  Ridinger,  1  GiU,  57; 
Banttoon  v.  Smith,  2  Bin,  146; 
Dougherty's  Estate,  9  Watts  &  S. 
189;  Gaskins  v.  Gaskins,  17  S,  &  R. 
390, 


G08 


INTEKEST. 


Allowed  on  annuities  and  legacies. —  Annuities,  except 
those  which,  are  testamentary,  are  not  very  common  in  this 
country.  In  England  annuities  do  not  bear  interest;^  nor  do 
hquidated  demands  generally  after  default,  except  on  commer- 
cial securities.^  But  on  the  principles  which  govern  on  this  side 
of  the  Atlantic,  after  a  sum  is  due  (which  is  not  interest)  and 
ought  to  be  paid,  it  bears  interest.^  There  is  no  reason  why  an 
annuity  should  be  an  exception.  Where  a  debt  is  payable  by 
instahuents,  each  instalment  will  bear  interest  after  it  is  due.* 
Legacies  bear  interest  after  they  are  payable,  and  they  are 
usually  due  by  legal  intendment  at  the  expiration  of  a  year 
from  the  testator's  death,®  unless  a  contrary  intention  appears 
in  the  will.  Where,  however,  the  legacy  is  to  a  child  of  the 
testator,  and  no  other  provision  is  made  for  its  support,  interest 
on  the  bequest  is  given  from  the  death  of  the  testator,  on  the 
presumption  that  such  w^as  the  intention  of  the  testator.^    But 


>  Earl  of  Mansfield  v.  Ogle,  4  De 
Gex  &  J.  41;  Booth  v.  Coulton,  L. 
E.  5  Ch.  G84;  30  L.  J.  Ch.  378:  Blogg 
V.  Johnson,  L.  R.  2  Ch.  225.  See 
Buson  V.  Elliott,  1  Del.  Ch.  368. 

^Higgins  V.  Sargent,  2  B.  &  C. 
848. 

3  Dobbins  v.  Higgins,  78  lU.  440. 
It  may  be  claimed  on  monthly 
"vrages  on  each  sum  as  it  becomes 
due.     Butler  v.  Kirby,  53  Wis.  188. 

4  Knettle  v.  Grouse,  6  Watts,  123. 

5  Sevearingham  v.  State,  4  Har.  & 
McHen.  38;  Lyons,  Adm.  v.  Magag- 
no's  Adm.  7  Gratt.  877;  Shobes,  Ex. 
V.  Car,  3  Munf.  10;  King  v.  Diehl,  9 
S.  &  E.  409;  Page's  Appeal,  71  Pa. 
St.  402;  Hoagland  v.  Ex'r  of  Schenck, 
16  New.  J.  L.  370;  Bradner  v.  Faulk- 
ner, 12  N.  Y.  472;  Darden  v.  Orgain, 
5  Cold.  211. 

In  Valentine  v.  Euste,  93  lU.  585, 
it  was  held  that  where  legacies  or 
bequests  in  a  will  are  by  their  terms 
to  be  paid  when  the  testator's  estate 
is  settled,  the  legatees  cannot  de- 
mand the  same  until  the  happening 


of  the  contingency.  If  the  executors 
should  fail  to  settle  the  estate  when 
by  law  they  ouglit  to  do  so,  the 
county  court  can  compel  them  to 
make  such  settlement,  and  then  the 
legacies  might  be  demanded;  and 
the  legatees  will  not  be  entitled  to 
interest  upon  the  legacies  before  the 
principal  is  properly  demandable. 

6  King  V.  Talbot,  50  Barb.  458; 
Martin  v.  Martin,  6  Watts,  67;  Ma- 
goffin, Adm.  V.  Patton,  4  Eawle,  113; 
Heath  v.  Perry,  3  Atk.  101;  Harvey 
V.  Harvey,  2  P.  Wm.  21;  Green  v. 
Belchin,  1  Atk.  506.  See  Cooke  v. 
Meeker,  42  Barb.  533;  Incledon  v. 
Northcote,  3  Atk.  438;  Hearle  v. 
Greeubank,  3  Atk.  716;  Coleman 
V.  Seymour,  1  Ves.  Sr.  210;  Beck- 
ford  V.  Tobin,  1  Ves.  Sr.  308;  Carey 
V.  Askew,  2  Bro.  Ch.  58. 

Cook  V.  Meeker,  36  N.  Y.  15. 
Where  a  sum  is  left  in  trust,  with 
direction  that  the  interest  and  in- 
come be  ai^plied  to  the  use  of  a  per- 
son, such  person  is  entitled  to  in- 
terest from  the  death  of  the  testator. 


INTEREST   AS   COMPENSATION.  609 

after  a  legacy  is  due  it  bears  interest,  althougli  the  fund  liable 
therefor  may  not  have  come  to  the  executor's  hands  within 
that  time,  and  notwithstanding  the  delay  was  occasioned  by 
something  in  the  will.^  If  a  legacy  consists  of  sums  directed 
to  be  paid  amiually,  it  seems  that  interest  on  arreai's  is  not 
generally  allowed,  unless  under  special  circumstances.^  A  testa- 
mentary annuity  to  the  widow  in  heu  of  dower  will  be  con- 
sidered as  intended  for  support  and  looked  upon  with  favor, 
and  interest  will  be  allowed  while  in  arrears ;  ^  but  not  if  pay- 
able in  agricultural  products  at  a  particular  place,  in  the 
absence  of  proof  of  a  demand  at  that  place.*  Where,  in  exe- 
cution of  an  ante-nuptial  agreement  that  the  wife  should  have 
one-third  of  all  the  real  and  personal  property  her  husband 
should  die  seized  and  possessed  of,  during  her  life  or  widow- 
hood, in  heu  of  her  dower  and  distributive  shares,  the  court  of 
chancery,  with  the  consent  of  the  ^vidow,  decreed  a  sale  of  the 
lands  of  the  deceased  husband,  free  from  all  claims  of  the 
widow,  and  prescribed  as  part  of  the  terms  of  sale  that  one- 
third  of  the  price  should  be  payable  on  the  termination  of  her 
hfe  or  widowhood,  but  the  interest  thereon  should  be  annually 
paid  to  her ;  it  was  considered  that  tlie  same  rule  should  apply 
as  to  annuities  granted  for  maintenance,  and  that  interest  should 
be  allowed  on  the  arrears  of  interest.^ 

On  moneys  due  on  policy  of  insupwVnce. —  Another  illustration 
of  the  principle  that  all  moneys  certain  in  amount  and  time  of 
payment  bear  interest  after  they  become  due,  is  afforded  by 

1  Huston's  Appeal,  9  Watts,  472;  ^PhiUips    v.    WUliams,    5    Gratt. 

Hoagland  v.  Ex'rs  of  Schenck,  16  259. 

N.  J.  L.    370;   Martin  v.   Martin,  6  ^  ^urrentine  v.    Perkins,   46  Ala. 

Watts,  67;  Addams  v.  HefFernau,  9  631;  Beavers  v.  Smith,   11  Ala.  32; 

Watts,  529.     See  Turrentine  v.  Per-  Newman    v.    Auling,    3    Atk.    579. 

kins,  46  Ala.  631;  Magoffin  v.  Patton,  See  Addams  v.  Heffeman,  9  Watts, 

4  Eawle,    113;  Brownlee  v.  Steel's  529;  Reed  v.  Reed,  1  W.  &  S.  235; 

Ex'rs,  Walk.  (Miss.)  179.  Smyser  v.  Smyser,  3  W.  &  S.  437; 

^Isenhart  v.  Brown,  2  Ed w.  341;  Stewart    v.    Martin,   2  Watts,    200; 

Adams,  Adm.   v.  Adams,  Adm.   10  Knettle  v.  Grouse,  6  Watts,  123.    See 

X,eigli,  527.  also    Woodward    v.    Woodwai"d,    3 

3 Beesons  Adm.  v.  Eeoson's  Ex.  1  Rich.    Eq.  23;  Gill's  Appeal,  2  Pa. 

How.  (Del.)  394;   Houston  v.  Jami-  St.  221. 
son,  Adm.  4  Harr.  (Del.)  330. 
Vol.  1  —  39 


610  INTEKEST. 

actions  on  policies  of  insurance  whicli  contain  an  agreement  to 
pay  at  a  certain  time  after  a  loss.  Interest  is  allowed  after  that 
time  expires  until  payment  is  made.*  The  time  fixed  by  the 
pohcy  may  be  waived  by  the  conduct  of  the  insurer,  and  the 
money  become  due  for  a  loss  before  that  period  expires.  It 
was  held  to  be  waived  where  on  proof  of  loss  and  demand  of 
payment  at  an  earlier  day,  the  insurer  admitting  the  loss  offered 
a  less  sum  and  refused  to  pay  the  full  amount.^  "Where  the 
sum  sued  for  in  any  case  is  certain  and  liquidated,  it  does  not 
cease  to  be  such,  for  the  purpose  of  the  allowance  of  interest, 
though  the  jury  make  an  arbitrary  deduction  therefrom.^ 

ISToT  AJLLowED  ON  TTNLiQmDATED  DEjrANDs. —  It  is  a  general 
principle  that  interest  is  not  allowed  on  unhquidated  damages  or 
demands.  The  term  unliquidated,  however,  applies  to  the  dam- 
ages recoverable  for  assault  and  batter}^  or  slander,  and  also  to 
those  recoverable  on  a  quantwni  meruit  for  goods  sold  and  de- 
livered, or  services  rendered.  Interest,  when  denied  because 
the  demand  is  unliquidated,  is  not  allowed  for  the  reason  that 
the  person  liable  does  not  know  what  sum  he  owed,  and  there- 
fore can  be  in  no  default  for  not  pa3'ing.  Those  damages 
which  are  AvhoUy  at  large,  depending  on  no  legal  standard,  and 
which  are  referred  to  the  discretion  of  a  jury,  can  never  be 
made  certain  except  by  accord  or  the  verdict  of  a  jury.  There 
can  be  no  default  in  respect  to  the  payment  of  such  damages, 
and  they  are  never  enhanced  by  interest.  But  demands  based 
upon  market  values,  susceptible  of  easy  proof,  though  unliqui- 
dated until  the  particular  subject  of  the  demand  has  been  made 
definite  and  certain  by  agreement  or  proof,  are  not  so  uncertain 
that  no  default  can  be  predicated  of  any  delay  in  making  pay- 
ment. A  demand  is  unliquidated  if  one  party  alone  cannot 
make  it  certain,'*  —  when  it  cannot  be  made  certain  by  mere  cal- 
culation; but  the  allowance  of  intet^est  as  damages  is  not 
dependent  on  this  rigid  test. 

1  Knickerbocker  Ins.  Co.  v.  Gould,         3  Martin   v.    Silliman,    53    N.    Y. 
80  111.  388;  Peoria  ]M.  &  Fire  Ins.  Co.      615. 

V.  Lewis,  18  lU.  553.  4  Clark  v.  Button,  69  111.  521;  Rob- 

2  Baltimore  F.  Ins.  Co.  v.  Loney,      erts  v.  Prior,  20  Ga,  561. 
20  Md.  20. 


INTEKEST   AS   COMPENSATION.  611 

In  a  leading  Xew  York  case,  decided  in  1849,  suit  was  brought 
for  the  value  of  rent,  long  in  arrear,  payable  in  services  and 
specific  articles ;  "  eighteen  bushels  of  Tvheat,  four  fat  hens,  and 
one  day's  service  with  carriage  and  horses  "  were  payable  yearly 
as  rent.  It  was  an  unliquidated  demand ;  it  was  not  payable 
in  money,  nor  was  a  specified  sum  to  be  paid  in  any  other  way. 
But  the  time  of  payment  was  certain,  and  therefore  the  claim 
of  interest  raised  the  clear  question  whether  the  uncertainty  of 
amount  would  alone  relieve  the  lessee  from  paying  interest  on 
the  value,  he  having  made  default  in  paying  in  the  particular 
mode  provided  for  in  the  lease.  Bronson,  J.,  delivered  the 
opinion  of  the  court  in  favor  of  allowing  interest.  He  said : 
"  It  was  decided  in  1806,  without  assigning  any  reason  for  the 
judgment,  that  interest  was  not  recoverable  in  such  a  case.^ 
But  since  that  time,  the  supreme  court  has  dehberately  held,  on 
three  several  occasions,  including  the  present  one,  that  interest 
is  recoverable  in  such  a  case.^ 

"  The  principle  to  be  extracted  from  these  decisions  may  be 
stated  as  follows:  Whenever  a  debtor  is  in  default  for  not 
paying  money,  delivering  property,  or  rendering  services  in 
pursuance  of  his  contract,  justice  requu'es  that  he  should  indem- 
nify the  creditor  for  the  wrong  which  he  has  done  him ;  and  a 
just  indemnity,  though  it  may  sometimes  be  more,  can  never 
be  less  than  the  specified  amount  of  money,  or  the  value  of  the 
property  or  services  at  the  time  they  should  have  been  paid  or 
rendered,  with  interest  from  the  time  of  the  default  until  the 
obhgation  is  discharged.  And  if  the  creditor  is  obliged  to  re- 
sort to  the  courts  for  redress,  he  ought  in  all  cases  to  recover 
interest,  in  addition  to  the  debt,  by  way  of  damages.  It  is  true 
that  on  an  agreement  hke  the  one  under  consideration  the 
amount  of  the  debt  can  only  be  ascertained  by  an  inquiry  con- 
cerning the  value  of  the  property  and  services.  But  the  value 
can  be  ascertained ;  and  when  that  has  been  done,  the  creditor, 
as  a  question  of  principle,  is  just  as  plainly  entitled  to  interest 
after  the  default,  as  he  would  be  if  the  like  sum  had  been  pay- 
able in  money.  The  English  courts  do  not  aUow  interest  in 
such  cases ;  and  I  feel  some  diiliculty  in  saying  that  it  can  be 

iVan    Eensselaer    v.    Platner,    1         2  Lush    v.    Druse,   4    Wend.    313; 
John.  276.  Van  Rensselaer  v.  Jones,  3  Barb.  643. 


613  INTEKEST. 

allowed  here  witliout  tlie  aid  of  an  act  of  tlie  legislature  to 
authorize  it.  But  the  courts  in  this  and  other  states  have  for 
man}^  years  been  tending  to  the  conclusion,  which  we  have 
finally  reached,  that  a  man  who  breaks  his  contract  to  pay  a 
debt,  whether  the  payment  was  to  be  made  in  money  or  in 
anything  else,  shall  indemnify  the  creditor,  so  far  as  that  can 
be  done,  by  adding  interest  to  the  amount  of  damage  which 
was  sustained  on  the  day  of  the  breach.  The  rule  is  just  in 
itself ;  and  as  it  is  now  nearly  nineteen  years  since  the  point 
was  decided  in  favor  of  the  creditor,  and  eight  out  of  the  nine 
judges  of  the  supreme  court  have,  at  different  times,  concurred 
in  that  opinion,  we  tliink  the  question  should  be  regarded  as 
settled."  1 

The  doctrine  of  this  case  has  been  adhered  to  in  that  state, 
and  often  reaffirmed.^  In  other  states  there  is  a  tendency  at 
least  to  the  same  doctrine,  and  to  some  extent  it  is  adopted.' 

The  question  is  the  same,  of  course,  so  far  as  the  uncertainty 
of  amount  affects  it,  when  the  demand  is  for  services  rendered, 
or  for  property  sold  and  delivered.  Such  a  case  was  decided  in 
New  York  in  1867.  The  referee  found  that  the  defendant  was 
indebted  to  the  plaintiff's  assignor,  on  a  certain  date,  in  a 
specified  sum.  The  case  shows  that  the  indebtedness  was  for 
professional  services.  But  the  court  remark:  "It  is  not  our 
province,  and  we  are  not  called  upon  to  examine  the  evidence  to 
ascertain  how  this  indebtedness  arose.  It  is  found  as  a  fact 
that  such  mdebtedness  specifically  existed,  in  a  certain  ascer- 
tained amount,  and  consequently  it  became  presently  due  and 
payable,  and  an  action  could  then  have  been  maintained  for  its 
recovery,  and  it  follows  that  interest  was  recoverable  on  the 
amount  from  the  day  the  same  became  due."  *  Where  the  rule 
of  damages  is  the  difference  between  the  contract  price  and  a 

1  Van  Rensselaer  v.  Jewett,  2  N.  Pipperly  v.  Stewart,  50  Barb.  62; 
Y.  135. ..,  Church  v.  Kidd,  6  Hun,  475. 

2  Adams  v.  Fort  Plain  Bank,  36  3Vaughan  v.  Howe,  20  Wis.  523; 
N.  Y.  255;  McCormick  v.  The  Penn.  Gammon  v.  Abrams,  53  id.  323; 
Cent.  R.  R.  Co.  49  N.  Y.  303;  My-  Ryan  v.  Baldrick,  3  McCord,  294; 
gatt  V.  Wilcox,  45  N.  Y.  406;  Dana  Driggers  v.  Bell,  94  111.  223. 

V.  Fiedler,  12  N.  Y.  40;  McMahon  v,  4  Adams  v.  The  Fort  Plain  Bank, 

N.  Y.  &  E.  R.  R.  Co.  20  N.  Y.  463;      36  N.  Y.  255. 
McCoUum  V.  Seward,  62  N.  Y.  316: 


mXEKEST   AS    COilPENSATION.  613 

market  value,  as  in  case  of  failure  to  deliver  goods  according  to 
contract,  interest  is  allowed  on  that  measure  of  damages  from 
the  date  of  the  breach.^  Johnson,  J.,  insisted  on  the  duty  to 
pay  interest  in  this  forcible  language:  "  The  party  is  entitled, 
on  the  day  of  performance,  to  the  property  agreed  to  be  deliv- 
ered; if  it  is  not  delivered,  the  law  gives,  as  the  measure  of 
compensation  then  due,  the  difference  between  the  contract  and 
market  prices.  If  he  is  not  also  entitled  to  interest  from  that 
tune,  as  a  matter  of  law,  this  contradictory  result  follows :  that 
while  an  indemnity  is  professedly  given,  the  law  adopts  such  a 
mode  of  ascertaining  its  amount,  that  the  longei^  a  party  is 
delayed  in  obtaining  it,  the  greater  shall  its  inadequacy  become. 
It  is,  however,  conceded  to  be  law  that  in  these  cases  the  jur}' 
may  give  interest  b}^  way  of  damages,  in  their  discretion.  ISTow, 
in  all  cases,  unless  this  be  an  exception,  the  measure  of  damages 
in  an  action  upon  a  contract  relating  to  money  or  property,  is  a 
question  of  law,  and  does  not  at  all  rest  in  the  discretion  of  the 
jury.  If  the  giving  or  refusing  interest  rests  in  discretion,  the 
law,  to  be  consistent,  should  furnish  some  legitimate  means  of 
influencing  its  exercise  by  evidence;  as  by  showing  that  the 
party  in  fault  has  failed  to  perform,  either  wilfully,  or  by  mere 
accident,  and  without  any  moral  misconduct.  AU  such  consid- 
erations are  constantly  excluded  from  a  jury;  and  they  are 
properly  told  that  in  such  an  action  their  duty  is  to  inquire 
whether  a  breach  of  the  contract  has  happened,  not  what 
motives  induced  the  breach, 

"  That  by  law  a  party  is  to  have  the  difference  between  the 
contract  price  and  the  market  price,  in  order  that  he  may  be 
indemnified,  and  because  that  rule  affords  the  measure  of  his 
injury  when  it  occurred;  that  he  may  not,  as  a  matter  of  law, 
recover  interest  which  is  necessary  to  a  complete  indemnity ; 
that  nevertheless,  the  jury  may,  in  their  discretion,  give  him  a 
coinplete  indemnity,  by  including  the  amount  of  interest  in  their 
estimate  of  his  damages ;  but  that  he  may  not  give  any  ef  idence 
to  influence  their  discretion,  presents  a  series  of  propositions, 
some  of  which  cannot  be  law.  The  case  of  Yan  Kensselaer  v. 
Jewett-  establishes  a  principle  broad  enough  to  include  this 

1  Driogers  v.  Bell,  94  111.  223;  Dana         ^2  Comst.  141. 
V.  Fiedler,  13  N,  Y.  40. 


614  INTEKEST. 

case,  and  has  freed  the  law  from  this  as  well  as  other  incon- 
sistencies in  which  it  was  supposed  to  become  involved. 
The  right  to  interest,  in  actions  upon  contract,  depends  not 
upon  discretion,  but  upon  legal  right ;  and  in  actions  like  the 
f)resent,  interest  is  as  much  a  part  of  the  indemnity  to  which 
the  party  is  entitled,  as  the  difference  between  the  market 
value  and  the  contract  price." 

l^or  is  it  an  objection  to  the  allowance  of  interest  on  the 
contract  price  of  property  sold,  not  paid  when  due,  that  there 
is  a  dispute  between  the  parties  as  to  the  quantity  and  quahtyJ 

In  actions  between  vendor  and  purchaser  for  failure  to  fulfil 
the  contract,  or  for  breach  of  wai^ranty  —  where  the  measure 
of  recovery  is  the  difference  between  market  price  and  contract 
price,  or  the  market  price  of  a  warranted  property  and  its  actual 
value  in  a  state  or  quality  inferior  to  that  which  was  warranted, — 
interest  is  to  be  added  to  the  damages  from  the  time  of  the 
breach.2     So  where  the  action  is  on  warranty  of  title.^ 

Money  is  due  immediately,  and  carries  hiterest  from  the  date 
of  the  transaction,  where  there  is  a  purchase  of  goods  or  other 
things  for  cash  on  dehvery,  or  without  any  other  time  being 
agreed  on.*  If  a  sale  is  made  on  a  definite  term  of  credit  agreed 
on,  or  implied  from  custom,  interest  is  chargeable  from  the  ex- 
piration of  that  term  of  credit,^     In  a  late  case  in  Wisconsin,  it 

1  Vaughn  v.  Howe,  20  Wis.  523.  s  Rowland  v.  Shelton,  25  Ala.  217; 
See  Gammon  v.  Abrams,  53  Wis.  Goss  v.  Dysant,  31Tex.  186;  Critten- 
323.  den  v.  Posy,  1  Head,  311;  Egglestou 

2  Clark  V.  Dales,  20  Barb.  42;  Ham-  v.  Macanley,  1  McCord,  L.  237.  But 
ilton  V.  Ganyard,  34  id.  204;  Fishell  see  Ancram  v.  Slone,  2  Speer,  594. 
V.  Winans,  38  id.  228;  Dana  v.  * 'Wyandotte,  etc.  Gas.  Co.  v. 
Fiedler,  13  N.  Y.  40;  Badgett  v.  Schliei'er,  22  Kan.  468;  Foote  v. 
Broughton,  1  Ga.  591;  Endersv.  B'd  Blauchard,  6  Allen,  221;  Pollock  v. 
Public  Works,  1  Gratt.  372;  Black-  Ehle,  2  E.  D.  Smith,  541:  Salter  v. 
wood  V.  Leman,  Harp.  143;  Bicknall  Parkhurst,  2  Daly,  240;  Clark  v.  Dal- 
V.  Waterman,  5  R.  I.  43;  Merryman  ton,  69  111.  521;  Waring  v.  Henry,  30 
V.  Criddle,  4  Munf.  542;  McKay  v.  Ala.  721;  Smith  v.  Shaffer,  50  Md. 
Lane,    5    Florida,    268;     Wolfe    v.  132. 

fSharpe,  10  Rich.  60;  Buford  v.  Gould,  5  Esterly  v.  Cole,  3  N.  Y.  502;  Ken- 

35  Ala.  265;  Marshall  v.  Wood,  16  id.  nedy  v.  Barnwell,  7  Rich.  124;  How- 

806;  Mayo  v.  PurceU,  3  Munf.  243;  ard  v.  Farley,  3  Robt.  308;   National 

Sohier  v.  Williams,   2   Curtis,  195.  Lancers  v.  Levering,  30  N.  H.  511; 

See  Curtis  v.  lunerarity,    6    How.  Moore  v.  Patton,  2  Port.  451;  Ray- 

U.  S.  146.  mond  v.  Isham,  8  Vt.  258;  Dickinsoa 


INTEKEST   AS    COMPENSATION. 


C15 


was  held  that  where  a  party's  right  to  compensation  under  a 
contract  is  doubtful,  and  is  contested  upon  reasonable  grounds, 
and  a  suit  is  required  to  determine  the  amount,  interest  will  not 
be  allowed  for  any  time  preceding  such  determination.^ 

Interest  allowed  on  accounts,  when. —  On  accounts  which 
were  not  due  when  made,  nor  by  the  expiration  of  any  term  of 
credit,  interest  is  allowed  after  demand  either  in  pais,  or  by  suit.^ 
A  demand  made  b}^  rendering  the  account,  it  is  true,  informs 
the  debtor  what  is  claimed  to  be  due  from  him,  and  gives  him 
the  means  of  examming  it  in  detail ;  and  then,  if  no  objection  is 
made,  it  becomes  a  stated  account, —  from  that  time  a  liquidated 
debt.3 

Interest  on  running  accounts,  when  denied,  is  refused  more  on 
the  ground  that  there  is  a  running  credit,  than  because  the  de- 
mand is  uncertain  and  unliquidated.  This  latter  objection  may 
exist  in  particular  cases ;  but  accounts  are  not,  ordinarily,  un- 
liquidated demands  in  the  sense  which  prevents  the  allowance  of 
interest.  A  demand  is  not  to  be  assumed  to  be  unliquidated  and 
uncertain,  merely  because  it  is  in  the  form  of  an  account.     A 


T.  Gould,  2  Tyler,  32;  Leyde  v.  Mar- 
tin, 16  Jlinn.  38;  Foote  v.  Blanchard, 
6  Allen,  221;  AVitburger  v.  Ran- 
dolph, Walk.  (Jiliss.)  20;  Wyandotte, 
etc.  Gas.  Co.  v.  Schliefer,  23  Kan. 
468. 

iShipman  v.  State,  44  Wis.  458. 

-'Case  T.  Hotchkiss,  3  Keyes,  334; 
S.  C.  3  Abb.  N.  S.  381;  1  Abb.  Ct.  of 
App.  324;  Mygatt  v.  Wilcox,  45  N. 
Y.  306;  White  v.  Miller,  78  N.  Y.  398; 
Mcllvaiue  v.  Wilkins,  12  N.  H.  474; 
Barnard  v.  Bartholomew,  22  Pick. 
291;  Wheeler  V.  Haskins,  41  Me.  432; 
Hall  V.  Huckins,  id.  574;  Goff  v. 
Inhabitants,  2  Gush.  475;  Wood  v. 
Hickox,  2  Wend.  501;  Brainard  v, 
Champlain  Transp.  Co.  29  Vt.  154; 
Gammel  v.  Skinner,  2  Gall.  45;  Van 
Husan  \.  Kanouse,  13  Mich.  303 
IBeardslee  v.  Horton,  3  Mich.  560 
McCollum^v.  Seward,  62  N.  Y.  316 
Harrison  v.  Coulan,  10  Allen,  85 
Adams    Express  Co.    v.   Milton,  11 


Bush,  49;  Palmer  v.  Stockwell,  9 
Gray,  237;  Hunt  v.  Nevers,  15  Pick. 
505;  Barrow  v.  Reab,  9  How,  U.  S. 
3G6;  Enden  v.  Board  of  Public  Works, 
1  Gratt.  389;  Ruckman  v.  Pitcher,  20 
N.  Y.  9;  McFadden  v.  Crawford,  39 
Cal.  662;  Young  v.  Dickey,  63  Ind. 
31;  Rend  v.  Boord,  75  Ind.  307;  Mar- 
Bteller  v.  Crapp,  62  Ind.  359. 

sWalden  v.  Sherburne,  15  John. 
409;  Liotard  v.  Graves,  3  Cai.  226; 
EUiott  V.  Minott,  2  McCord,  125; 
Beardslee  v.  Horton,  3  Mich.  560; 
Van  Husan  v.  Kanouse,  13  Mich. 
803;  UnderhiU  v.  Gaflf,  48  lU.  198; 
Richard  v.  Barrett's  Heirs,  7  B.  Mon. 
379,  383;  Elliott  v.  Minott,  2  Mc- 
Cord, 125;  Barnard  v.  Bartholomew, 
22  Pick.  291;  Mygatt  v.  Wilcox,  45 
N.  Y.  306;  Case  v.  Hitchcock,  3 
Keyes,  334;  Martin  v.  Silliman,  53 
N.  Y.  615.  See  Davis  v.  Smitli,  48 
Vt.  52. 


616  INTEREST. 

running  account  implies  an  indefinite  credit,  and  a  demand  is 
necessary  to  place  the  debtor  in  default.  Interest  is  properly 
due  and  recoverable  on  accounts,  when  the  items  are  not  contro- 
verted nor  unhquidated,  and  where  the  circumstances  are  such 
that  the  debtor  is  in  default ;  —  has  unreasonably  neglected  to 
make  pa}nnent.^  To  put  an  account  upon  interest,  a  demand  is 
often  necessary,  but  not  on  the  ground  of  uncertainty.  And 
after  demand,  or  after  commencement  of  suit,  accounts  gener- 
ally bear  interest.  The  commencement  of  suit  is  a  form  of  de- 
mand. Accounts  are  generally  made  up  of  items  which  represent 
money  paid  or  advanced,  goods  sold  and  delivered,  or  services 
rendered,  on  request.  They  are,  severally,  demands  on  which 
interest  may  be  claimed,  though  the  price  has  not  been  fixed  by 
agreement,  and  must  be  established  by  ex^dence.^ 

An  account  is  no  more  uncertain  as  to  amount,  in  the  aggre- 
gate, than  are  the  constituent  items ;  and  the  fact  that  the}'-  are 
charged  in  account  can  have  no  adverse  effect  in  resftect  to  in- 
terest ;  entering  them  in  a  book  has  even  been  emphasized  as 
thouirh  it  were  a  circumstance  having  some  influence  in  favor 
of  interest.*  Where,  however,  the  account  or  demand  is  for  par- 
ticulars, the  value  or  amount  of  which  cannot  be  measured  or 
ascertained,  by  reference  to  market  rates ;  and  are  intrinsically 
uncertain ;  or  the  creditor's  demand  of  pajnnent  is  excessive  or 
vague,  a  different  case  is  presented.*  Where  a  plaintiff  merely 
asked  the  defendant  for  his  pay  for  labor  and  materials,  an  ac- 
count not  being  presented,  and  never  having  been  rendered,  such 
request  was  not  considered  a  demand  which  could  aid  any  view 
of  the  case.^  But  a  demand  of  that  kind  would  be  sufficient 
where  no  information  in  respect  to  the  amount  of  the  claun  is 
needed  to  be  imparted.®  A  demand  of  more  than  a  party  is 
entitled  to  is  of  no  avail.'' 

1  See  cases  in  note  2,  ante,  p.  615;  1  419;  Wells  v.  Abemethy,  5  Conn. 
Am.  Lead.  Cas.  505.  222;  Breyfogle  v.   Beckley,  16  S.  & 

2  Id.;  Smith  v.  Shaffer,  50  Md.  132.  R.  264;  Nelson  v.  Cartmels,  6  Dana, 

3  Marsh  v.    Fraser,   37  Wis.    149.  7;  Ringo  v.  Biscoe,  13  Ark.  563. 
Campare  Schmidt  v.  Limehouse,  2  ^  See  Clark  v.  Clark,  46  Conn.  586. 
Bailey,  276;  Dillon  v.  Dudley,  1  A.  K.  5  Marsh  v.  Fraser,  37  Wis.  149. 
Marsh.  65;  Hunt  v.  Nevers,  15  Pick.  <iGammel  v.  Skinner,  2  Gall.  45. 
500;  Dodge  v.  Perkins,  9  Pick.  368;  -  Lusk  v.  Smith,  21  Wis.  28;  GoiT 
Cannon  v.    Biggs,    1    McCord,  370;  v.  Inhabitants,  2  Cush.  475. 
Scudder  v.  Morris,  Peuu.  (N.  J.  L.) 


INTEREST   AS    COMPENSATION.  017 

Where  no  such  uncertainty  appears,  and  the  subject  of  the 
account,  and  the  cu-cumstances  connected  with  it,  indicate  that 
the  delay  has  not  been  owing  to  the  debtor's  ignorance  of  the 
amount  he  had  to  pay,  interest  has  been  allowed  after  a  reason- 
able credit.^  Xor  wiU  the  want  of  a  demand  be  any  objection 
to  the  allowance  of  interest,  where  the  debtor  has  absented 
himself  from  the  state  v^'ithout  caUing  for  his  account,  and 
thereby  prevented  any  demand  being  made  upon  him.  In  such 
a  case,  interest  was  held  to  be  allowable  from  the  time  of  the 
latest  transaction  or  service.^  A  demand  of  more  than  is  due 
may  well  be  treated  as  insufficient  to  put  the  debtor  in  default; 
for  it  not  only  does  not  tend  to  hquidate  the  claim,  but  actually 
indicates  that  the  plaintiff  prevents  both  adjustment  and  pay- 
ment, or  that  the  claim  is  intrinsically  micertain.^ 

Claims  sounding  in  damages,  and  accounts  where  there  has 
been  no  especial  diligence  on  the  part  of  the  creditor,  for  long 
and  vexatious  delay  on  the  part  of  the  debtor,  in  the  absence  of 
a  demand,  present  cases  where  interest  may  not  be  allowed  as 
matter  of  law,  but  may  be  allowed  in  the  name  of  damages,  by 
a  jury,  in  their  discretion.*  The  important  inquuy  is,  whether 
the  debtor  has  done  all  that  the  law  required  of  him  in  the  par- 
ticular case.     If  he  has,  he  is  not  hable  for  interest ;  if  he  has 

1  Wells  V.  Brown,  2  Penn.  (N.  J.  24;  KUderhouse  v.  Saveland,  1 
L.)  411;  Wood  v.  Smith,  23  Vt.  706.  Bradw.  65;  Chicago  v.  Allcock,  86 

2  Graham  v.  Ex'r  of  Graham,  2  111.  384;  Newson  v.  Douglass,  7 
Kej-es,  21;  Graham  v.  Chrystal,  2  Harris  &  J.  417;  Blacker.  Eeybold, 
Abb.  App.  Dec.  263.  3  Harr.  (Del.)  528;  Dottera  v.  Ben- 

3Hoagland  v.  Segur,  38  N.  J.  L.  nett,  5  Rich.  295;  Noe  v.  Hodges,  5 

230.                    •  Humph.    103;    Feeter  v.    Heath,  11 

4Eckert  v.  Wilson,  12  S.  &  R.  393;  Wend.  477;  Tatum  v.  Mohr,  21  Ark. 

Anonymous,  1  John.  315;  Constable  350;  Rogers  v.  AVest,  9  Ind.  403;  Bare 

V.  Golden,  2  John.  480;  Hagg  v.  The  v.  Hoffman,  79  Pa.  St.  71;  Richmond 

Augusta  Ins.  &  B.  Co.  Taney,  159;  v.  The  Dubuque  &  S.  C.  R.  Co.  33 

Wiltberger     v.     Randolph,     Walk.  Iowa,    422;    McNaUy  v.    Shobe,    23 

(Miss.)  20;    Cole  v.    Sands,  Term  R  Iowa.  49;  Mote  v  Chicago  &  N.  W. 

106;  Huston  v.   Cnitcher,  31  Miss.  R'y    Co.   27    Iowa,   22;    McNear    v. 

51;  Willings  V.  Consequa,  Pet.  C.  C.  McOmber,    18    Iowa,     12;    Noe    v. 

172;  Gilpius  v.  Consequa,  id.  85;  Dox  Hodges,  5  Humph.  103;  Watkinson 

V.  Dey,  3  Wend.  356:  Stark's  Adm.  v.  Laughton,  8  John.  213;  Uhland  v. 

V.    Price,   5   Dana,   140;   Morford   v.  Uhland,  17  S.  &  R.  265:  Bkxck"s  Ex'r 

Ambrose,   3  J.  J.  Marsh.  688;   Dela-  v.  Reybold,  3  Harr.  (Del.)  528;  Gra- 

ware  Ins.  Co.  v.  Delaunie,  3  Binu.  ham  v.   Williams,  16  S.   &  R.  257, 

295;  Amory  v.  McGregor,  15  John.  See  Wood  v.  Smith,  23  Vt.  706. 


618 


INTEKEST. 


not,  he  must  pay  it  as  a  compensation  for  the  non-performance 
of  his  contract.^ 

The  cases  are  very  numerous  in  which  it  has  been  held,  or 
declared  in  general  terms,  that  interest  is  not  allowed  on  open 
running-  accounts.^  But  the  cases  were  those  where  there  had 
been  no  demand  of  payment,  or  other  circiunstances,  to  impose 
the  immediate  duty  to  pay ;  or  else  the  claim  founded  on  the 
account  was  exceptionally  uncertain  and  unliquidated.  When 
a  promissory  note,  or  other  instrument,  expresses  no  tune  when 
it  is  payable,  it  is  due  immediately,  and  bears  interest  from 
date ;  ^  and  other  commercial  paper,  payable  at  day  certain,  will 
bear  interest  after  maturity.*  Notes  payable  on  demand  will 
not  bear  interest  until  a  demand  is  made ;  the  creditor,  so  long 
as  he  refrains  from  making  a  demand,  acquiesces  in  the  debtor's 
retention  of  the  money.^ 


1  Dodge  V.  Perking,  9  Pick.  368. 
This  case  is  referred  to  in  Foote  v. 
Blancliard,  6  Allen.  221,  as  correctly- 
stating  the  law  as  held  in  Massachu- 
setts. See  Evans  v.  Beckwith,  37 
Vt.  285;  and  also  Scroggs  v.  Cun- 
ningham, 81  111.  110. 

2Polhenius  v.  Aunin,  Coxe  (N.  J. 
L.),  176;  Tucker  v.  Ives,  6  Co  wen, 
193;  Davis  v.  Walker,  18  Mich.  25; 
Clement  v.  McConnell,  14  111.  154; 
Beardalee  v.  Horton,  3  Mich.  560; 
Marsh  v.  Frazer,  37  Wis.  149;  Henry 
V.  Risk,  1  Dall.  286;  Williams  v. 
Craig,  id.  338:  Blaney  v.  Hendrick, 
3  Wils.  205;  De  Haviland  v.  Bower- 
bank,  1  Camp.  50;  Smith  v.  Vehe,  60 
N.  Y.  lOG. 

^Gaylord  v.  Van  Loan,  15  Wend. 
308;  Lewis  v.  Lewis,  JMart.  &  Hayw. 
191;  Purdy  v.  Philhi^s,  1  Duer,  369; 
Francis  v.  Castleman,  4  Bibb,  383; 
Sheehy  v.  Mandeville,  7  Cranch,  208; 
Farquhar  v.  Morris,  7  T,  E.  124; 
Collier  v.  Gray,  Overton,  110;  Rog- 
ers V.  Colt,  21  N.  J.  L.  19. 

^  Grantt  v.  MacKenzie,  3  Camp. 
51;  Thorndike  v.  U.  S.  2  Mason,  1; 
Hastings  v.  Vf iswell,  8  Mass.  455. 

&  Hudson  V.   Daily,   13   Ala.   722; 


Vaughan  v.  Goode,  Minor  (Ala.), 
417;  Freeland  v.  Edwards,  Mart.  & 
Hayw.  207;  Hm-d  v.  Palmer,  21  U.  C. 
Q.  B.  49;  Pate  v.  Gray,  Hemps.  155; 
Patrick  v.  Clay,  4  Bibb,  246;  Bartlett 
V.  Marshall,  2  Bibb,  4G9;  WaUace  v. 
Wallac^i,  8  Bradw.  69;  South  v. 
Leary,  Hardin,  518;  Conyers  v.  Ma- 
grath,  4  McCord,  218;  Cole  v. 
Sands,  Term  R.  106;  Trotter  v. 
Grant,  2  Wend.  413;  Wood  v. 
Hickok,  id.  501;  McConnico  v. 
Curzen,  2  Call.  301 ;  Kerr  v.  Love,  1 
Wash.  (Va.)  217;  Hadley  v.  Ayres,  13 
Abb.  N.  S.  240;  Woqfl  v.  Smith,  23 
Vt.  706;  Shemel  v.  Givan,  2  Blackf. 
312;  Delaware  Ins.  Co.  v.  De  Launie, 

3  Binn.  301;  Crawford  v.  Willing,  4 
Dall.  286;  Oberinger  v.  Nichols,  6 
Binn.  159;  Newell  v.  Keith,  11  Vt. 
214;  Esterly  v.  Cole,  1  Barb.  235;  &. 
C.  3  N.  Y.  502;  McKnight  v.  Duulop, 

4  Barb.  36;  Hoagiand  v.  Segur,  N.  J. 
L.  230.  In  Darlington  v.  Wooster,  9 
Ohio  St.  518,  on  a  demand  note, 
where  there  w^as  no  proof  of  a  de- 
mand, it  was  held  that,  by  force  of 
the  statute  fixing  the  rate  of  interest, 
the  plaintiff  was  entitled  to  recover 
interest  from  the  date  of  the  note. 


INTEREST   AS    COMPENSATIONS'.  G19 

It  has  been  held  that  by  consenting  to  a  delay  of  payment, 
a  creditor  is  precluded  from  recovering  interest  during  such  de- 
lay ;  so,  if  a  person  entitled  to  money  resists  the  reception  of  it, 
he  cannot  recover  interest.^  If  a  note  be  payable  at  a  fixed 
time,  as  at  one  day  after  date,  and  there  be  a  subjoined  agree- 
ment, that  suit  shall  not  be  brought  so  long  as  the  maker  is 
ahve,  or  the  payee  is  satisfied  that  he  is  solvent,  interest  still 
runs  from  the  time  specified  for  payment.-  Where  an  obliga- 
tion was  written  pa^^able  in  a  certain  month,  it  was  held  that 
interest  did  not  commence  until  after  the  last  day  of  that 
month.^  Interest  is  not  payable  before  the  maturity  of  the 
principal,  unless  so  expressed.  Where  a  note  is  for  several  annual 
instalments,  interest  is  payable  on  the  instalments  as  they 
become  due,  and  not  annually  on  the  whole  sum.^ 

When  demand  of  payment  necessary. —  Although  money 
lent  bears  interest  from  the  lending,  it  is  only  so  when  there  is 
no  agreement  of  the  parties  modifying  the  right.  If  a  note  for 
money  lent  be  fallen  payable  on  demand,  it  has  no  advantage 
on  account  of  that  consideration,  and  only  bears  interest  like 
all  other  demand  notes  from  the  time  of  the  demand.^ 

Besides  moneys  due  on  running  accounts  and  demand  notes, 
there  are  various  other  kinds  of  what  may  be  termed  passive 
liabilities,  in  respect  to  which  the  party  liable  caimot  be  placed 
in  default,  and  consequently  chargeable  with  interest,  until  the 
money  is  demanded,  or  notice  of  some  fact  is  given.  The  ques- 
tion of  notice  has  been  much  discussed,  and  is  by  no  means  set- 

Tlie  statute  provides,  "  that  all  cred-  wiU  bear  interest  from  its  rendition, 

itors  shall  be  entitled  to  receive  in-  even  if  prior  to  the  day  specified  for 

terest  upon    all  moneys    after    the  interest    to    begin.      See    Ijams    v. 

same  shall  become  due,   either  on  Rice,  17  Ala.  404. 

bond,  bill,  promissory  note,  or  other  i  Craig  v.  Penick,  3  J.  J.  Marsh.  16. 

instrument    of    writing,    etc."      In  2  Powell  v.  Guy,  3   Dev.  &  Batt. 

Billingsby,   Adm.  v.  Billingsby,  24  70;   Carter  v.  King,    11    Rich.    125; 

Ala.  518,  it  was  decided  that  where  Rallman  v.  Baker,  5  Humph.  406. 

a  note  is  payable  on  a  specified  day,  ^  Pollard  v.  Yoder,  2  A.  K.  Marsh, 

and  contains  a  stipulation  that  it  264. 

shall  not  bear  interest  until  another  ■*  Bawder  v.  Bawder,  7  Barb.  560. 

specified    day    after    maturity,    an  ^  Schmidt  v.  Limehouse,  2  Bailey, 

action  is  maintainable  after  matur-  276;    Pullen  v.   Chase,   4  Ark.  120; 

ity,  notwithstanding  the  judgment  "Walker  v.  Wills,  5  Ark.  166. 


C20  INTEKEST. 

tied.  It  is  not  necessary  to  enter  into  it  in  this  connection.* 
In  many  cases,  as  in  those  of  continuing  guaranties,  it  is  neces- 
sary to  a  complete  cause  of  action;  in  others,  to  place  the 
defendant  in  default,  so  as  to  subject  him  to  interest. 

Bail  are  liable  for  interest  on  the  judgment  from  the  return 
of  the  ca.  sa.;  for  they  are  fixed  from  that  time,  and  are  bound 
to  take  notice  of  the  proceedings  of  the  court.^  So,  on  a  re- 
plevin bond,  the  sureties  are  liable  to  interest  on  the  value  of 
the  property  adjudged  against  the  principal  from  the  date  of 
the  judgment.  The  undertaking  in  these  and  similar  cases  is 
specific,  depending  only  on  contingencies  determinable  by 
the  proceedings  in  the  case ;  and  of  which  they  are  bound  to 
inform  themselves.  But  in  an  action  for  the  benefit  of  a  cred- 
itor of  an  insolvent  estate,  brouglit  upon  an  achninistrator's 
bond  against  a  surety,  it  appeared  that  the  creditor's  claims  had 
been  allowed,  and  the  probate  court  had  made  a  decree  of  dis- 
tribution; and  that  the  administrator  died  soon  thereafter;  it 
was  held  that  interest  sliould  be  added  to  tlie  sum  found  due  by 
the  decree  of  distribution  only  from  the  time  payment  was  de- 
manded of  the  surety.^ 

It  is  a  general  rule  that  a  party  is  not  entitled  to  notice  unless 
he  has  stipulated  for  it,  or  it  is  necessary  by  the  very  nature  of 
the  transaction ;  as  where  the  act  on  which  ptiyment  is  to  be 
made  is  indefinite,  and  when  it  occurs  will  be  peculiarly  in  the 
knowledge  of  the  pa3^ee.^  On  a  guaranty  of  payment  of  notes, 
not  exceeding  in  all  a  certain  amount  that  should  be  discounted 
by  a  bank  for  another,  it  was  held  that  the  guarantor  was  hable 
to  the  amount  of  the  guaranty ;  but  not  for  interest  until  notice 
given  that  the  principal  had  failed  to  pa}^^  If  the  event  on 
which  the  money  is  to  be  payable  is  one  not  particularly  within 
the  knowledge  of  the  payee,  as  a  death ;  ^  or  a  marriage,  even 

1  See  2  Am.  Lead.  Cas.  33  et  seq. ;  442;  Hodges  v.  Holeman,  2  Dana, 
Vinal  V.  Richardson,  13  Allen,  531;      396. 

Brown  v.  Curtis,  2  N.  Y.  225.  &  Washington  Bank  v.  Shirtleflf,  4 

2  Constable  v.  Colden,  2  Jolm,  Met.  30;  Henning's  Case,  Cro.  Jac. 
480.  432. 

3  Heath  v.  Guy,  10  Mass.  371;  over-  ^  Troubar  v.  Hunter,  5  Rawle,  257; 
ruling  Payne,  Judge,  v,  Mclnteer,  1  Simmer,  Adm'r,  v.  Beebe,  37  Vt. 
Mass.  69.  562. 

4Vyse  V.  Wakefield,  6  M.  &  W. 


mXEEEST    AS    COMPEiSiSATIOX.  C21 

tliougli  tlie  payee  be  a  party  to  it,^  interest  commences  to  run 
from  the  time  when  tlie  event  occurs. 

"When  allowed  on  money  had  and  eeceived. —  The  action 
for  money  had  and  received  is  an  equitable  action ;  and  whether 
interest  shall  be  recovered,  depends  upon  the  particular  circum- 
stances of  the  case.  In  some  cases,  it  is  said  the  defendant 
ought  to  refund  the  principal  merely ;  and  in  others  he  ought 
■ex  equo  et  hoiio  to  refund  the  principal  with  interest;  each  case 
depends  on  the  justice  and  equity  arising  out  of  its  peculiar 
facts.-  If  the  defendant  has  derived  an  advantage  from  the 
money ;  or  committed  some  wrong  in  obtaining  or  disposing  of 
it ;  or  is  in  default  in  not  paying  it  over,  he  will  be  charged 
with  interest.  Thus,  where  the  common  property  is  rented  out 
by  one  tenant  in  common,  he  is  accountable  to  his  co-tenants 
for  his  share  of  the  rents  received ;  and  he  is  liable  for  interest 
■upon  his  receipts  of  rent  from  the  end  of  the  rent  year ;  because, 
having  another's  money  and  using  it,  he  should  pay  interest 
on  it.^ 

A  person  who  bought  a  slave,  with  notice  of  a  better  title, 
was  decreed  to  deliver  him  and  pay  profits ;  and  interest  was 
charged  against  him  upon  the  •  hires  actually  received  by  him 
from  other  persons  from  the  date  of  his  receipts ;  but  not  upon 
the  profits  of  such  slave  Avhile  in  his  own  possession  without 
being  hired ;  the  same  being  unliquidated  and  merely  conject- 
nral  sums,  and  which  he  was  in  no  default  in  not  paying.*  If 
money  is  paid  to  the  defendant  under  a  mutual  mistake,  and  no 
fraud  is  imputable  to  either  part}^,  interest  cannot  be  recov- 
ered until  after  a  demand.^  So  a  party  receiving  from  an  ad- 
ministrator full  payment  of  his  debt  against  the  estate  on  the 
supposition  that  it  is  solvent,  when  afterwards  sued  to  recover 

1  Fletcher  v.   Pynsett,    Cro.   Jac.  <  Baird  v.  Bland,  5  Muuf .  493. 

103,  5  Jacobs    V.    Adams,    1    Dall.    53; 

2Peasev.  Barber,  3  Cai.  SG6;  Mar-  Simons    v.   Walter,    1   McCord,   97; 

Tin  V.  McEae,  1  Cleves,  61;  Porter  Northrop  v.  Graves,   19  Conn.  548; 

v.  Nash,  1  Ala.  453.  Passenger  Ry.  Co.  v.  Philadelphia, 

3  Early   v.    Friend,    16   Gratt.    31;  51   Pa.  St.  465;  Lynch   v.   Debiar,   3 

Jones  V.  Williams,  3  Call,  85;  Dow  John.  Ca.  303;  Sanders  v.  Scott,  68 

V.  Adams,  Adm'r,  5  l\Iunf .  31 ;  Nuckit  Ind.  130. 
"V.  Lawrence,  5  Rand.  571. 


622  INTEREST. 

the  excess  above  the  ratable  part,  on  the  estate  proving  insolv- 
ent, it  was  held  that  interest  was  not  recoverable  until  after 
a  demand.^  A  mere  depositary,  bailee,  stockholder  or  trustee, 
is  not  hable  to  interest  by  merely  banning  the  money  in  his 
hands;  there  must  be  a  wrongful  use  made  of  the  mone}^, 
refusal  to  pay  on  proper  demand,  or  some  neglect  of  duty  by 
which  interest  was  lost.'^  s  • 

When  allowed  against  agei^ts  and  trustees. —  An  agent 
who  receives  money  for  his  principal,  in  the  transaction  of  the 
principal's  business,  is  not  liable  for  interest  on  the  money  so 
received,  before  a  demand  is  made  for  the  money ;  unless  the 
agent  has  received  special  instructions  to  remit  as  fast  as  col- 
lected ;  or  is  in  default  in  neglecting  to  render  his  accounts ; 
and  the  same  rule  applies  to  an  attorney  who  has  collected 
money  for  his  clients.''  But  where  an  agent,  having  received 
money,  unreasonably  neglects  to  inform  his  principal  of  it,  he 
is  liable  to  interest  from  the  time  when  he  ouo-ht  to  have  mven 

O  O 

such  information.* 

Interest  is  allowed  where  the  law  b}^  implication  makes  it  the 
duty  of  the  party  to  pay  over  money  to  the  owner  without  any 
previous  demand  on  his  part.^    A  trustee  who  has  the  custody 

1  Walker  v.  Bradley,  3  Pick.  261;  gin,  6  J.  J.  Marsh.  581;    Taylor  v. 

Stevens  v.  Goodell,  3  Met.  34.  Kuox,  Ex.  1  Dana,  391;  Johnson  v. 

2 Lake  v.  Park,   19   N.  J.   L.   108;  Eicke,  13  N.  J.   L.   316;  Knight   v. 
Ex  parte  Walsh,  Adm.  26  Md.  495;  Reese,  2  Dall.  182;  Raynor  v.  Bry- 
Wade  V.  Wade's  Adm.   1  Wash.  C.  son,  29  Md.  473;  IngersoU  v.  Camp- 
C.  477;  Huntley  v.  York  Bank,  21  bell,  46  Ala.  282;   Dilhard  v.  Tom- 
Pa.  St.  291;  Roach  v.  Jelks,  40  Miss,  linson  and  Wyatt  v.  Muse,  1  Munf. 
754;  Reynolds  v.  Walker,  29  Miss.  183;  Karr's  Adm.  v.  Karr,  6  Dana,  5 
250;  Fitzgerald  v.   Jones,    1   Munf.  Dexter    v.   Arnold,    3    Mason,    284 
150;  Mickle  v.    Cross,    10  Md.    352;  Candee  v.    Skinner,   40   Conn.   464 
Ruck  man  v.    Pitcher,    20  N.  Y.  9;  Stearns  v.  Brown,  1  Pick.  530;  Wy- 
Union  Bank  v.  Solle,  2   Strobh.  390;  man  v.  Hubbard,  13  Mass.  232;  New- 
Robinson  V.  Corn  Exchange  and  Ins.  ton  v.  Bennet,  1  Bro.  Ch,  359. 
Co.  1  Robt.  14;    Jacot  v.  Emmett,  <* 'VVilliams  v.  Storrs,   6  John.   Ch. 
11  Paige,  142;  Parsons  v.  Treadwell,  353;  Crane  v.  Dygert,  4  Wend.  675 
50  N.  H.  356;  Doxey  v.    Miller,    2  Hauxhurst  v.   Hovey,    26  Vt.    544 
Bradw.  30;  Talbot  v,  Nat.  Bank,  129  Lever    v.    Lever,    2    Hill    Ch.   158 
Mass.    67;    Wood    v.    Robbins,     11  Roland    v.    Martindale,    1    Bailey's 
Mass.  504;  Bell,  Adm.  v.  Logan,  7  J.  Eq.  226. 

J.  Marsh.  593;  Vance,  Adm.  v.  Vance,  •*  Dodge  v.  Perkins,  9  Pick.  368. 

5  T.  B.   Mon.  521;  Johnson  v.  Hag-  5 ibid;  Ellery    v.    Cunningham,    1 


INTEREST   AS   CO]UTENSATION.  623 

and  management  of  funds,  and  uses  them  in  Ms  private  busi- 
ness; realizes  interest  by  lending;  neglects  to  render  the  fund 
productive  when  it  was  his  duty  to  do  so ;  fails  to  account  when 
called  upon;  or  is  otherwise  guilty  of  neglect,  evasion,  fraud, 
or  any  wrong  administration,  will  be  charged  with  interest,  and 
even  compound  interest,  according  to  the  culpability  of  his 
conduct.^ 

Interest  is  charged  against  trustees  on  the  principle  that  all 
profits  made  from  the  emploj^ment  of  the  trust  funds  belong 
to  the  beneficiary ;  and  that  he  is  entitled  to  be  indemnified  for 
the  loss,  through  their  neglect  or  fraudulent  management,  of 
the  profit  and  increase  which  would  have  arisen  from  a  diligent 
and  judicious  performance  of  the  trust.  If  interest  is  lost  by 
negligence  of  the  trustee,  he  is  charged  with  interest,  either 
simple  or  compound,  as  ma}^  be  required  to  compensate  that 
loss,  which  may  be  greater  or  less,  according  to  the  degree  of 
the  dehnquency.  If,  in  violation  of  the  trust,  he  mingles  the 
trust  funds  with  his  own  and  uses  them  in  his  business,  he  does 
so  at  his  peril ;  and  if  he  refuses  or  neglects  to  give  an  account 
of  the  profits  made,  or  makes  an  evasive  or  unsatisfactor}'-  one, 
compound  interest  will  be  charged,  Avith  rests  long  or  short, 
according  to  circumstances.  The  interest  is  thus  compounded 
as  a  punishment  for  breach  of  trust  and  as  a  substitute  for  the 
undisclosed  profits.^  A  trustee  is  not  chargeable  Avith  compound 

Met.    112;    Bidell  v.   Janney,  9  HI.  Hen.    &    Munf.     415;     Quarles    v. 

193;  Nisbet  v.   Lawson,  1   Ga.    275;  Quarles,    2  Munf.    331;    English    v. 

Bank  of  South  CaroUua  v.  Buire,  3  Harvey,  2  Rawle,  305;  CaUaghan  v. 

Strobh.  439:  Anderson  v.   Georgia,  Hall,  1  S.  &  R.  241;  Yundt's  Appeal, 

2  Ga.  370;  Boyd  v.  Gilchrist,  15  Ala.  13  Pa.  St.  575;  Witman  v.  Geisin- 
849;  Harrison  v.  Long.  4  Desau.  Ill;  ger's  Appeal.  28  Pa.  St.  376;  Bronse- 
Hawkins  v.  Minor,  5  Call,  118;  Kim-  man  v.  Frank,  28  Pa.  St.  475;  Ver- 
brel  V.  Glover,  13  Rich.  L.  191.  ners  Estate,  6  Watts,  250;  Robert's 

iLomax  v.  Pendleton,  3  Call,  465;  Appeal,  92  Pa-.  St.  407;  Bruner's  Ap- 

Voorhees  v.  Stoothoff,   11  N.J.  L.  peal,  Gray's  App.  57  Pa.  St.  46;  Kerr 

145;  Jones  v.  Ward,   10  Yerg.   160;  v.   Laird,  27  Miss.  544;  Pearson  v. 

Amos,  Adm.  v.   Heatherly,  7  Dana,  Darrington,  32  Ala.  227;  Thomas  v. 

48;  Singleton's  Heirs  v.  Singleton's  Scliool,    9   Gill  &  J.  115;  Estate  of 

Ex.  5  Dana,  97;  Clay  V.  Hart,  7  Dana,  Isaacs,    30    Cal.    105;    Jennison    v. 

17;  Nixon's  Heirs  v.  Nixon's  Adm.  8  Hapgood,  10  Pick.  77. 

Dana,  5;  Hooper  v.  Winston,  24111.  '-Barney  v.  Saunders,  16  How.  U. 

353;  White's  Heirs  v.  White's  Adm.  S.  539.     In  the  Matter  of  Harland's 

3  Dana,  376;  Miller  v.   Beverlj^s,   4  Accounts,  5  Rawle,  323,  Gibson,  C.  J.. 


C2J: 


INTEKEST. 


said:  "It  is  a  fundamental  rule  of 
equity,  that  a  trustee  shall  not  make 
a  profit  of  the  fund  for  himself;  and 
that  substitution  of  interest  for 
profits  not  ascertainable  is  but  a 
modification  of  it.  Such  being  the 
admitted  basis  of  the  rule,  no  color- 
able reason  can  be  assigned  why  it 
shou-ld  not  be  apphed  as  well  to  an 
administrator  who  has  used  the 
trust  moneys  without  having  ac- 
counted for  the  profits,  as  to  an 
executor  or  trustee  bound  by  in- 
structions or  the  nature  of  his  office 
to  invest  for  accumulation.  If  he 
trade  witli  the  moneys  of  the  fund, 
he  shall,  like  any  other  trustee,  make 
good  the  loss  or  render  the  gain;  and 
where  it  is  indeterminate  by  reason 
of  his  refusal  to  account  (always  an 
index  of  fraud),  the  presumption  is, 
that  it  was  at  least  equal  to  simple 
interest  for  the  year,  and  that  in  his 
hands  at  the  end  of  it,  it  became 
capital  and  made  gain  in  its  turn.  If 
it  were  no  greater  in  fact  than  simple 
interest  for  the  period,  he  has  no 
more  to  do,  in  order  to  get  rid  of  the 
presumption  of  compound  profits, 
than  to  show  the  truth  by  exhibiting 
the  accounts.  While  he  stands  out, 
the  presumption  tliat  he  made  more 
than  tlie  sum  obtained  by  the  method 
of  computation  employed  against 
him,  is  an  irresistible  one,  else  tlie 
result  would  make  it  worth  his  while 
to  disclose  the  truth.  If  he  kept  no 
accounts,  he  cannot  murmur  at  the 
adoption  of  that  rule  of  computation 
which  is  most  beneficial  to  the  fund, 
and  but  a  reasonable  penalty  for  his 
negligence.  Interest  is  payable  peri- 
odically; and  the  matter  resolves 
itself  into  a  question  whether  a 
trustee  may  superinduce  a  state  of 
things  tliat  shall  give  him  the  benefit 
of  its  earnings  in  prejudice  of  the 
fund.  Take  the  case  of  an  executor 
plainly  bound  to  accumulate,  who 


deliberately  disregards  his  testator's 
directions  to  reinvest,  and  becomes 
a  borrower  from  the  fund  at  simple 
interest;  shall  not  the  interest,  as  it 
falls  due,  be  principal  in  his  hands, 
as  it  would  have  been  if  he  had  re- 
ceived it  of  a  stranger?  In  such  a 
conjunctui-e,  it  is  impossible  to 
conjecture  how  the  fund  can  be 
rightfully  left  in  a  less  prosperous 
condition  than  it  would  have  attained 
had  he  reinvested  according  to 
the  terms  of  the  will.  To  suffer  a 
trustee  to  elude  the  conditions  of 
the  trust,  by  borrowing  from  it  at 
simple  interest,  and  using  the  pro- 
ceeds for  his  own  advantage,  would 
offer  an  irresistible  temptation  to 
maladministi"ation,  by  enabling  him 
to  benefit  by  his  own  wrong.  That 
interest  should  not  bear  interest  is 
not  a  dictate  of  justice;  but  the  effect, 
in  particular  cases,  of  arbitrary  en- 
actment, founded,  it  is  thought  by 
some,  on  a  questionable  policy;  and 
in  a  case  distinctly  out  of  the  pur- 
view of  the  statute,  where  the 
statutory  measure  is  arbitrarily  but 
necessarily  assumed  for  the  com- 
putation of  profits,  there  is  no 
imaginable  reason  why  the  product 
should  not  be  compounded  where 
there  is  reason  to  believe  that  the 
profits  were  compounded;  or  why 
the  party  beneficially  entitled  should 
not  be  put  in  the  condition  tliat  a 
conscientious  discharge  of  the  trust 
would  have  put  him.  In  a  case  of 
negligence  or  omission  consistent 
with  good  faith,  policy  dictates  a 
more  indulgent  course,  such  as  was 
pursued  in  Harvey  v.  English,  3 
Rawle,  308."  Schieffelin  v.  Stewart, 
1  John.  Ch.  620;  Frost  v.  Winston, 
32  Mo.  489;  Ogden  v.  Larrabee,  57 
111.  389:  Raphael  v.  Boehm,  11  Ves. 
92;  Smith  v.  Lumpton,  8  Dana,  73; 
Torbet's  Heirs  v.  McReynolds,  4 
Humph.  315. 


INTEKEST   AS    COMi'EXSAlION. 


G25 


interest  unless  he  receives  compound  interest,  or  has  been  guilty 
of  a  gross  abuse  of  his  trust.* 


•Raynor  v.  Bryton,  29  Md.  473; 
Vaughan  v.  Bibb,  46  Ala.  153;  Arm- 
strong V.  Campbell,  3  Yerg.  201; 
Tumey  v.  Williams,  7  Yerg.  172. 

Bryant  v.  Craig,  12  Ala.  354,  is  an 
instructive  case  upon  this  subject. 
Ormond,  J.,  said:  "  As  the  guardian 
could  not  be  guilty  of  negligence 
in  not  investing  the  money  of  his 
ward,  unless  the  law  required  him 
to  invest  it,  the  first  question  which 
naturally  presents  itself  is,  what  is 
the  law  upon  that  subject.  Our 
statute  law,  though  very  full  and 
particular  as  to  the  mode  of  aj)- 
pointing  guardians,  making  settle- 
ments with  them,  etc.,  is  silent  upon 
this  particular.  It  results,  however, 
necessarily  from  the  nature  of  the 
trust,  that  the  estate  of  the  ward 
should  be  profitably  employed,  as 
otherwise  it  would  be  consumed; 
and  where  it  consists  of  money,  tliis 
could  only  be  by  lending  it  out  on 
good  security.  In  England,  a  trustee, 
whose  duty  it  is  to  invest  the  money 
in  his  hands,  is  exonerated  from  lia- 
bility by  investing  it  in  the  public 
funds,  which,  as  the  court  would 
direct  to  be  done  on  application,  it 
will  sanction  if  done  without  such 
application;  and  he  will  be  exoner- 
ated from  lial:»ility  though  the  stock 
should  fall  in  value.  Fi'anklin  v. 
Frith,  3  Bro.  Ch.  433;  Holmes  v. 
Dung,  2  Cox's  Ch.  1.  In  Smith  v. 
Smith,  4  John  Ch.  284,  Chancellor 
Kent  seems  to  think  that  personal 
security  is  insufficient,  and  that  a 
trustee,  lending  money,  must  re- 
quii'e  adequate  real  security,  or  re- 
sort to  public  funds.  Here  are  no 
public  funds  in  which  money  may 
be  safely  and  securely  invested.  At 
least  there  has  been  none  until  very 
recently,  and  it  is  not  probable  we 
Vol.  1—40 


shall  be  long  burthened  with  a  pub- 
lic debt.  Pei'sonal  security,  no  mat- 
ter how  good  it  was  deemed  at  the 
time,  would  not  be  sufficient;  and  it 
may  be  added,  that  with  us,  real 
property  is  subject  to  such  fluctua- 
tions that  it  is  by  no  means  an  ade- 
quate security,  and  it  may  veiy  well 
be  doubted  whether  he  would  not  be 
personally  liable  for  any  loan  he 
may  have  made  of  the  money  with- 
out the  sanction  of  the  court,  no 
matter  what  security  he  may  have 
talcen.  Our  statute  appears  to  have 
intended  to  place  the  whole  matter 
under  the  direction  of  the  orphans' 
court,  as  it  invests  that  court  with 
power  to  direct  a  sale  of  the  land  of 
the  ward,  if  the  personal  estate  and 
the  rents  and  i:)rofits  of  the  realty 
wei-e  insufficient  for  his  support; 
and  it  appears  to  follow  necessarily, 
that  the  same  court  would  have  the 
power  to  direct  in  what  manner  the 
money  of  the  ward  shovild  be  in- 
vested. It  was  the  duty  of  the 
guardian,  if  he  desires  to  exonerate 
himself  from  the  payment  of  in- 
terest, to  apply  to  the  court  for  di- 
rection in  the  investment  of  the 
funds,  who  would  have  examined 
the  proposed  security,  and  whose 
approbation  would  have  exonerated 
the  guardian  from  Mability,  if  after- 
wards lost  without  his  mjglect.  The 
guardian  ha%-ing  omitted  to  make 
this  application,  must  pay  interest 
on  tlie  funds  in  his  hands,  whether 
they  have  been  profitable  to  him  or 
not ;  and  we  next  proceed  to  inquire 
wlietlier  this  is  such  gross  negli- 
gence as  will  authorize  rests  to  be 
made  in  the  account  for  the  pui-pose 
of  charging  him  compound  interest. 
The  general  nile  undoubtedly  is,  that 
v.iiere  it  is  the  dvity  of  the  trustee  to 


62G 


INTEREST 


invest  the  trust  funds,  and  he  fails 
to  do  so,  he  is  chargeable  only  with 
eimple  interest.  See  cases  already- 
cited,  and  Newton  v,  Bennet,  1  Bro. 
Ch.  359,  in  the  note  to  which  Mr. 
Eden  has  collected  all  the  author- 
ities, establishing  conclusively  that, 
for  neglect  merely,  the  practice  of 
the  court  is  to  charge  interest  at  the 
rate  of  four  per  centum.  Where  the 
trustee  is  guilty  of  fraud  or  corrup- 
tion, or  where,  in  open  violation  of 
the  trust,  he  applies  the  funds  to 
his  own  use  in  trade;  converts  the 
property  or  securities,  as  for  example 
Btock,  into  money,  and  applies  it  to 
his  own  use;  or  otherwise  corruptly 
and  fraudulently  abuses  the  trust 
reposed  in  him,  he  may  be  charged 
with  compound  interest. 

"The  first  case,  it  is  said,  in  which 
compound  interest  was  charged 
against  an  executor,  is  Raphael  v. 
Boehm,  11  Vesey,  91.  That  was  a 
case  of  gross  misconduct,  and  vio- 
lation of  the  terms  of  the  trust,  by 
embarking  the  funds  in  trade,  in- 
stead of  investing  them  for  the  pur- 
pose of  accumulation,  as  directed  by 
the  wUl.  Tlie  principle,  established 
by  this  case,  does  not  appear  to  have 
been  followed  in  cases  where  the 
facts  appear  to  be  very  similar.  See 
Ashburnham  v.  Thompson,  13  Ves. 
402;  andTebbs  v.  Carpenter,  1  Madd. 
S91.  In  this  last  cited  authority,  all 
tlie  cases  are  collated  and  elabo- 
rately examined;  and  although  there 
was  in  that  case  a  direction  in  the 
will  that  the  assets  should  be  in- 
vested in  the  public  funds,  which 
was  not  done;  yet  the  vice  chancel- 
lor refused  to  allow  compound  in- 
terest. He  sums  up  an  elaborate  and 
able  review  of  the  authorities  thus: 
•It  appears,  therefore,  from  this 
view  of  the  authorities,  that  a  dis- 
tinction has  been  taken,  as  in  every 
moral  point  of  view  there  ought  to 


be,  between  negligence  and  corrup- 
tion, in  executors.  A  special  case  is 
necessary  to  induce  the  court  to 
charge  executors  with  more  than 
four  per  cent,  upon  the  balances  in 
their  hands.  The  obligation  on  ex- 
ecutors to  lay  out  balances  not 
wanted  for  the  exigencies  in  the  tes- 
tator's affairs,  is  now  better  under- 
stood, since  it  has  been  settled  that 
they  are  indemnified  against  any  loss, 
in  laying  them  out  in  the  fund  which 
the  court  sanctions, — the  three 
per  cents.  If  the  executor  has  bal- 
ances which  he  ought  to  have  laid 
out,  either  in  compliance  with  the 
express  directions  of  the  will,  or 
from  his  general  duty,  even  where 
the  will  is  silent  on  the  general  sub- 
ject, yet  if  there  be  nothing  more 
proved,  in  either  case,  the  omission 
to  lay  out  amounts  only  to  a  case  of 
negligence  and  not  of  misfeasance.' 

"Chancellor  Kent,  in Schieffelin  v. 
Stewart,  1  John.  Ch.  620,  adopts  the 
stringent  rule  laid  down  in  Raphael 
V.  Boehm,  supra,  without  adverting 
to  the  distinction  between  neglect 
and  fraud;  but  in  the  subsequent 
case  of  Clarkson  v.  De  Peyster,  Hop. 
Ch.  434,  the  chancellor  refused  to 
allow  compound  interest,  in  a  case, 
in  all  its  material  features,  not  dis- 
tinguishable from  the  case  before  us; 
and  the  decision  was  affirmed  on 
appeal. 

"  Tlie  cases  cited  from  the  Tennes- 
see and  Kentucky  reports  are  not 
applicable  in  this  state.  In  both  these 
states  statutes  exist,  requiring  the 
guardian  to  invest  the  money  of  his 
ward.  Hughes  v.  Smith,  2  Dana, 
252;Torbet  V,  McReynolds,  4  Humph. 
215;  1  vol.  Ky.  Statutes,  768;  Car.  & 
Nicholson's  Dig.  3(38. 

' '  The  charge  of  compound  interest 
seems  to  be  adopted  as  a  punishment 
in  those  cases,  where,  from  the  gross 
management  of  the  trustee,  it  is  dif- 


mXEKEST   AS   COMPENSATION. 


627 


ficult,  if  not  impossible,  to  ascertain 
what  the  income  of  the  estate  would 
otherwise  have  been;  but  it  may 
safely  be  asserted,  that  no  estate  in 
money,  under  the  most  judicious 
management,  can  be  made  to  yield 
compound  interest,  at  the  rate  of 
eight  per  centum. 

"  If  it  had  been  annually  invested 
under  the  direction  of  the  court, 
some  delay  must  have  been  encoun- 
tered, in  finding  a  person  desirous  to 
borrow,  and  able  to  give  the  neces- 
sary security.  It  is  not  reasonable 
to  presume,  that  where  so  lent,  it 
would  always  be  punctually  paid,  so 
as  to  be  immediately  reinvested;  nor 
can  it  be  doubted  that  it  would  fre- 
quently be  necessary  to  coerce  pay- 
ment by  suit;  and  that  after  every 
precaution  had  been  taken,  both 
principal  and  interest  would  occa- 
sionally be  lost.  The  charge  of  com- 
pound interest,  therefore,  is  unjust, 
because  the  estate  could  not  have 
yielded  that  by  any  prudent  manage- 
ment in  the  hands  of  the  owner,  had 
he  been  of  age  to  manage  it  himself. 

"  The  mere  omission  of  the  guard- 
ian to  apply  to  the  court  for  author- 
ity to  invest  it,  and  the  failure  to 
make  annual  settlements,  ai-e  not  evi- 
dence of  fraud,  but  establish  negli- 
gence merely;  and  the  court,  there- 
fore, acted  correctly  in  refusing  to 
allow  compound  interest. 

"We  come  to  the  consideration  of 
the  remaining  question.  In  stating 
the  account,  the  judge  of  the 
orphans'  court  charged  the  guardian 
with  interest  on  money  received  by 
him,  and  allowed  him  interest  on  the 
sums  disbursed,  calculating  each 
from  the  time  it  accrued  to  the  time 
of  settlement.  This  was  erroneous. 
The  statute,  previously  cited,  re- 
quires the  guardian  to  render,  at 
least  once  a  year,  an  account  of  his 
receipts  and  disbursements.     If  this 


had  been  done,  the  disbursements 
would  have  been  extinguished,  pro 
tanto,  by  the  interest,  which  the 
guardian  should  have  charged  for 
the  money  of  the  ward  in  his  hands, 
and  he  cannot  place  himself  in  a 
better  condition  by  tliis  neglect  of 
duty  than  if  he  had  performed  it.  It 
could  not  be  tolerated  that  the 
guardian  should  hold  the  estate  in 
his  hands  for  a  number  of  years,  all 
the  interest  of  the  ward's  capital,  or 
what  comes  to  the  same  thing,  neg- 
lect to  apply  for  its  investment,  and 
encroach  annually  upon  the  capital 
for  the  support  of  the  ward;  for  this 
is  the  effect  of  the  mode  of  account- 
ing adopted  by  the  court. 

"  If  it  was  shown  that  the  guardian 
was  compelled  to  keep  on  hand  a 
certain  sum  of  money  to  meet  the 
expenditures  of  his  ward,  it  would 
be  the  duty  of  the  court  not  to  charge 
interest  on  such  sum.  In  the  absence 
of  such  necessity,  which  is  not 
shown,  and  wliich  probably  did  not 
exist,  it  was  the  duty  of  the  court  tc» 
charge  the  guardian  with  interest  on 
aU  money  of  the  ward  in  his  hands, 
from  the  time  of  its  receipt,  and  al- 
low him  interest  on  aU  disburse- 
ments from  the  time  they  were 
made;  the  interest  due  from  the 
guardian  to  extinguish  pro  tanto,  or 
in  full,  as  the  case  may  be,  the  ex- 
penditure of  the  ward.  For  which 
purpose,  if  necessary,  the  court  will 
make  annual,  or  longer  or  shorter 
rests  in  the  account,  so  as  to  carr\- 
fully  into  effect  the  objects  and  pur- 
poses of  the  decree;  but  so  as  not  in 
any  manner  to  compound  the  inter- 
est against  the  guardian.  These  prin- 
ciples are  clearly  stated  in  the  case 
of  De  Peyster  v.  Clarkson,  2  AVend. 
77,  and  otlier  cases  cited." 

In  Miller  v.  Beverlys,  4  Hen.  & 
Munf.  -115,  the  court  laid  down  this 
general  rule:  that "  in  all  cases  what- 


628 


INTEEEST. 


Public  officers  who  fail  to  pay  over  money  in  their  hands, 
according  to  their  official  duty,  will  also  be  charged  with  in- 
terest from  the  time  they  should  have  paid  it.^ 

On  money  obtained  by  extoktion  oe  fraud. —  Money  ob- 
tained wi'ongfuUy,  or  by  extortion  or  fraud,  is  recoverable  with 
interest  from  the  time  it  was  so  obtained ;  ^  and  if  money  received 
to  another's  use  is  wrongfully  withheld,  or  disposed  of,  it  car- 
ries interest.^  And  interest  is  allowed  on  money  received  by 
a  party  for  property  tortiously  taken  or  converted  by  him.* 


soever,  a  trustee,  such  as  (in  that 
case)  is  liable  to  pay  interest  for 
the  trust  money  in  his  hands,  un- 
less he  can  show  that  it  was 
necessarily  kept  in  hand  for  the 
purposes  of  the  trust."  Banks  v. 
Machen,  40  Miss.  256;  Trotter  v. 
Trotter,  id.  704;  Smithers  v.  Hooper, 
23  Md.  273;  Garret,  Ex'r,  v.  Car,  1 
Rob.  (Va.)  196;  Rosser  v.  Depriest,  5 
Gratt.  6. 

In  Layton  v.  Hogue,  5  Ore.  93,  an 
executor  purchased,  through  an 
agent,  a  parcel  of  land  belonging  to 
the  estate  under  his  care  as  such,  and 
afterwards  made  permanent  im- 
provements and  paid  taxes.  In  a  suit 
by  the  heirs,  this  sale  was  set  aside 
as  fraudulent,  and  allowance  was 
made  to  the  defendants,  who  were 
the  heirs  of  the  fraudulent  trustee, 
for  the  permanent  improvements 
and  taxes,  after  deducting  rents  and 
profits;  this,  together  with  the 
amount  paid  at  the  fraudulent  sale, 
was  required  to  be  paid  back,  but 
without  interest.  It  was  observed 
that  to  allow  interest  in  such  a  case, 
would  be  allowing  tliem  to  reap  ad- 
vantage from  the  wrongful  and  in- 
equitable act  of  their  ancestor. 

'  Commonwealth  v.  Porter,  21  Pa. 
St.  385;  Magner  v.  Knowles,  67  111. 
825;  People  v.  Gasherie,  9  John.  71; 
Slingerland  v.  Swart,  13  John.  255; 
Lawrence  v.  Murray,  3  Paige,  40(>; 


Board  of  Justices  v.  Fennimore, 
Coxe  (N.  J.  L.),  242;  Hudson  v.  Ten- 
ney,  6  N.  H.  456:  Crane  v.  Dygert,  4 
Wend.  675;  Board  of  Supervisors  v, 
Clark,  25  Hun,  282. 

'^  Atlantic  National  Bank  v.  Har- 
ris, 118  Mass.  147;  Conyer's  Adm.  v. 
Magrath,  4  McCord,  218;  Winslow 
v.  Hathaway,  1  Pick.  211;  Trustees, 
etc.  V.  Lawrence,  11  Paige,  80;  Boston 
&  Sandwick  Glass  Co.  v.  Boston,  4 
Met.  181;  Greenly  v.  Hopkins,  10 
Wend.  96;  Adkins  v.  Ware,  35  Tex. 
577;  Wood  v.  Bobbins,  11  Mass.  504; 
Clayton  v.  O'Connor,  35  Ga.  193; 
Komegay  v.  AVhite,  10  Ala.  255; 
Goddard  V.  Bulow,  1  Nott.  &  McCord, 
45;  Greggs  v.  Greggs,  56  N.  Y.  504; 
Mason  v.  Waite,  17  Mass.  560.  In 
Chew  V.  The  Bank  of  Baltimore,  14 
Md.  299,  a  transfer  of  stock  under  a 
bill  of  sale,  and  jiower  of  attorney, 
executed  by  a  lunatic,  was  avoided, 
and  it  was  held  that  the  defendant 
should  pay  simple  interest  on  the 
dividends  accrued  on  the  stock  since 
the  transfer,  from  the  time  the  de- 
fendant knew  of  the  lunacy.  See 
Lmcoln  v.  Clafflin,  7  Wall.  132. 

^Rapelie  v.  Emory,  1  Dall.  349; 
Shipman  v.  Miller.  2  Root,  405;  Black 
v.  Goodman,  1  Bailey,  201;  Simpson 
V.  Feltz,  1  McCord's  Eq.  213;  Com- 
monwealth V.  Crevor,  3  Binn.  121. 

••  Chauncey  v.  Yeaton,  1  N.  H. 
151. 


EN'TEIIEST    AS   COMPENSATION. 


G29 


IXTEREST    OX   DAilAGES   IN   ACTIONS   FOR   TORTS, In  actionS  for 

torts,  in  order  to  give  the  injured  party  full  indemnity,  interest 
is  allowed,  in  trover,  or,  where  any  analogous  remedy  is  sought, 
on  the  value  of  the  property  from  the  date  of  conversion ;  ^  in 
trespass,  also,  on  the  value  from  the  date  of  the  taking.^  In  re- 
plevin, mterest  is  allowed  to  the  plaintiff  on  the  value  of  the 
property,  during  the  period  of  wrongful  detention ;  and  this  is 
the  ordinary  measure  of  damages  where  no  special  damage  is 
shown ;  ^  but  in  the  absence  of  any  statute  allowing  damages  to 
the  defendant  for  wrongful  detention  by  means  of  the  suit,  in- 
terest is  not  recoverable  by  him  in  that  action.*  Where  chattels 
are  destroyed,  or  their  value  diminished  by  wrongful  negligence, 
interest  is  likewise  a  part  of  the  compensation  to  which  the  in- 
jured party  is  entitled.^  A  distinction  has  been  made  in  respect 
to  interest  in  cases  of  an  agent  or  trustee  beccHuing  liable  for 
property  in  his  hands  between  loss  by  negligence  and  misfea- 


iHyde  v.  Stone,  7  Wend.  3.j4; 
McConnick  v.  Pennsylvania  Cent. 
R.  E.  Co.  49  N.  y.  303;  Dows  v.  Na-. 
tional  Exch.  Bk.  91  U.  S.  618;  Taylor 
V.  Knox,  Ex'r,  1  Dana,  400;  Bissell 
v.  Hopkins,  4  Cow,  53;  Riclimond  v. 
Bronson,  5  Denio,  55;  Garrard  v. 
Dawson,  49  Ga.  434;  Welile  v,  But- 
ler, 43  How.  Pr.  5;  Scliwerin  v, 
McKie,  51  N.  Y.  180;  Beals  v.  Guern- 
sey, 8  John,  446;  Kennedy  v,  Whit- 
well,  4  Pick.  468;  Johnson  v,  Sum- 
ner, 1  Met.  172;  Hogg  v,  Zanesville 
C.  &  M.  Co.  5  Ohio,  410;  Hepburn  v, 
Sewell,  5  Harr.  &  J.  212;  Kennedy 
V.  Strong,  14  John.  128;  Ekins  v. 
East  India  Co.  1  P.  Wms.  395; 
Thomas  v,  Sternheimer,  29  Md.  268; 
Fowler  v,  Davenport,  21  Tex.  626; 
Pease  v.  Smith,  5  Lans,  519;  Vaughan 
T,  Howe,  20  Wis.  497;  Chauncey  v. 
Yeaton,  1  N.  H.  151.  See  Pierce  v, 
Rowe,  1  N.  H.  179;  Hamer  v.  Hatha- 
way, 33  Cal.  117;  Northern  T.  Co.  v. 
Sellick,  52  111.  249;  Tarpley  v,  Wil- 
son, 33  Miss.  467. 

-  Blackie  v,    Cooney,    8  Nev,   41 ; 
Shepherd  v,   McQuilkin,  2  W.  Ya. 


90;  Beals  v.  Guernsey,  8  John.  446; 
Bradley  v,  Geiselman,  22  111.  494. 

3  Brizsee  v.  Maybee,  21  Wend.  144; 
Bigelow  V.  Doolittle,  36  Wis.  115; 
Gilhes  V.  Wofford,  26  Tex.  76;  Mc- 
Donald V.  Scaife,  11  Pa.  St.  381; 
Scott  V.  Elliott,  63  N.  C.  45;  McDon- 
ald V.  North,  47  Barb.  530;  Robinson 
V.  Barrows,  48  Me,  186;  Oviatt  v. 
Pond,  29  Conn.  479, 

^McCarty  v,  Quimby,  12  Kans. 
494.  See  Booth  v.  Ableman,  20 
Wis.  602. 

5  Chicago  &  N,  W.  Ry.  Co.  v. 
Schultz,  55  111.  421;  Cliapman  v. 
Chicago  &  N.  W.  Ry.  Co,  26  Wis. 
295;  Whitney  v,  Chicago  &  N.  W. 
Ry.  Co.  27  Wis.  327;  Buffalo  &  H. 
Turnpike  Co.  v,  Buffalo,  58  N.  Y. 
639;  PaiTott  v.  Knickerbocker  Ice 
Co.  46  N.  Y.  361;  Hogg  v,  ZanesviUe 
C.  &  M,  Co.  5  Ohio,  410;  Walrath  v. 
Redfield,  18  N.  Y,  457;  Hinds  v. 
Barton,  25  N.  Y,  544.  But  see  Black 
V.  Camden  &  A.  R.  R.  and  T.  Co.  45 
Barb.  40;  Richmond  v.  Bi-onson,  5 
Denio,  55;  Lakeman  v.  Griunell,  5 
Bosw.  625, 


630  INTEKEST. 

sance.  Where  his  liability  is  not  for  any  actual  or  intended 
benefit  to  himself,  as  by  conversion  of  the  property  to  his  own 
use,  he  is  only  liable  for  the  value  without  interest ;  but  if  he 
has  derived  a  private  advantage  out  of  the  property,  he  wiR  be 
hable  to  interest.^  In  actions  for  damages  caused  by  colhsion, 
interest  is  allowed  on  the  cost  of  repairs  and  rental  value  while 
the  vessel  is  undergoing  repairs.-  Interest  is  allowed  on  all 
pecuniary  elements  of  damage  resulting  from  torts,  consisting 
of  moneys,  property  or  labor,  the  value  of  which  is  reasonably 
certain.* 

Section  6. 

the  law  of  what  place  and  time  governs. 

Law  of  place  of  contract  —  As  to  notes  and  bills  —  Bonds  to  U.  S.  to  ac- 
count for  public  moneys —  Between  parties  doing  business  in  different 
states — Where  the  question  of  xisury  is  involved — The  law  of  tvhat 
place  governs  rate  as  damages  —  Allegation  and  proof  of  foreign 
law  —  Effect  of  change  in  the  law  of  the  place  of  contract. 

As  interest  is  generally  regulated  by  statutes,  and  these  are 
not  the  same  in  all  jurisdictions,  and  fluctuate  more  or  less  in 
each,  it  is  of  great  practical  importance  that  definite  rules  or 
principles  should  exist  for  determining  the  force  and  effect  of 
these  laws,  and  by  which  of  them  any  given  contract  or  habihty 
is  to  be  governed. 

Owing  to  the  wide  domain  of  commerce,  inter-national  and 
inter-state,  questions  of  interest  arising  under  statutory  regula- 
tions and  restrictions  are  not  of  local  concern.  These  ques- 
tions arise  upon  every  form  of  indebtedness  incident  to  that 
commerce;  and  often  between  parties  widely  separated,  not 
only  by  distance  but  national  and  state  lines,  each  performing 
his  part  in  their  transaction  at  home,  or  in  different  jurisdic- 
tions, and  under  the  influence  of  different  laws.     These  transac- 

1  Marshall  v.  Schricker,  63  Mo.  N.  Y.  151;  Whitehall  Transportation 
308;  Dawes  v.  Winship,  5  Pick.  97,  Co.  v.  N.  J.  Steamboat  Co.  51  N.  Y. 
note;  Thompson  v.  Stewart,  3  Coun.      369. 

171;  Rootes  v.  Stone,  2  Leigh,  650;  ^Maillerv.  Express  Prop.  Line,  61 

Ricketson  v.  Wright,  3  Smuner.  335;  N.  Y.  313;  Jay  v.  Almy,  1  Woodb.  & 

Short  V.  Skipwith,  1  Brock.  103.  M.  262;  Remke  v.  CUnton,  2  Utah, 

2  MaiUer  v.  Express  Propeller  Line,  230;  Grosvenor  v.  Ellis,  44  Mich.  452; 
61  N.  Y.  312;  Warrall  v.  Munn,  38  Snow  v.  NowUn,  43  Mich.  383. 


THE   LAW   OF   ^YUAT   PLACE   AND   TIME    GOVERNS.  631 

lions  involve  expenditures,  independent  or  subsidiary  contracts, 
and  the  performance  of  them,  in  many  different  places  having 
]io  common  rate  of  interest. 

General  rule  as  to  validity  and  construction  of  con- 
tracts.—  The  general  rule  is  that  the  contract,  in  respect  to  its 
construction  and  force;  in  other  Avords,  its  validity  and  mean- 
ing, is  governed  by  the  law  of  the  place  where  it  is  made  and 
to  be  performed.^  If  valid  there,  it  is  jure  gentium^  valid 
everywhere ;  ^  and  if  void  there,  is  void  everywhere.^  "What  is 
the  place  of  contract  is  not  always  easy  to  determine;  nor  have 
the  courts  uniformly  arrived  at  the  same  conclusion  from  the 
same  or  similar  facts. 

The  inquiry  is  made  for  two  objects  —  one  to  ascertain  the 
amount  of  interest  which  the  creditor  is  entitled  to  receive  on 
an  agreement  for  interest  generally,  specifying  no  rate ;  and  the 
other  to  determine  whether  the  contract,  when  it  contains  an 
agreement  for  a  specific  rate  of  interest,  or  one  on  which,  at  its 
inception,  interest  was  taken,  is  usurious. 

It  is  a  general  rule  that  where  the  contract  stipulates  for 
interest,  it  is  payable  agreeably  to  the  law  of  the  place  where 
the  contract  is  made ;  but  if  the  contract  is  made  with  reference 
to  the  laws  of  another  state  or  country,  and  is  to  be  performed 

1  Archer  v.  Dunn,  2  Watts  &  S.  Conf.    L.   §  242;  Andrews    v.   Her- 

327;  Ralph  v.  Brown,  3  Watts  &  S.  riot,   4  Cow.  510;  Watson  v.  Orr,  3 

395;  Findlay  v.    Hall,    12  Ohio  St.  Dev.  L.  161;  Chartres  v.  Cairnes,  4 

610.  Mart.  N.  S.  1;  Courtois  v.  Cai^pen- 

2PearsaU  v.  Dwight,   2  Mass.  88;  ter,   1  Wash.    C.    C.   376;    Brackett 

Willings  V.  Consequa,   1  Pet.  C.  C.  v.   Norton,   4  Conn.  517;  Palmer  v. 

317;  De  Sobry  v.  De  Laistre,  2  Harr.  Yai-rington,  1   Ohio  St.  253;  Harper 

&    J.    193;    Trimbey  v,  Vignier,    1  v.  Hampton,  1  Harr.  &  J.  453,  622; 

Bing.  N.  C.  151;   Houghton  v.  Page,  Warrender  v.  Warrender,  9  Bligh. 

2  N.  H.  42;  Dyer  v.  Hunt,  5  N.  H.  110. 

401;  Andrews  v.  Pond,  13  Pet.  65;  3 ibid;  United  States  v.  La  Jeune 
Whiston  V.  Stodder,  8  Mart.  95:  Eugenie,  2  Mason,  409;  Van  Schaick 
Bank  of  U.  S.  v.  Donnally,  8  Pet.  v.  Edwards,  2  John.  Ca.  355;  Rob- 
361;  Wilcox  v.  Hunt,  13  Pet.  378;  inson  v.  Bland,  2  Burr.  1077;  Touro 
French  v.  HaU,  9  N.  H.  137;  An-  v.  Cassin,  1  Nott.  &  McC.  173;  Van 
drews  v.  His  Creditors,  11  La.  464;  Rumsdyk  v.  Kane,  1  Gall.  371; 
Smead  v.  Mead,  3  Conn.  253;  Med-  Alves  v.  Hodgson,  7  T.  R.  241;  Mo- 
bury  V.  Hopkins,  3  Conn.  472;  2  Allister  v.  Smith.  17  111.  328;  Kan- 
Kent's    Com.   457  et  seq. ;    Story's  aga  v.  Taylor,  7  Oliio  St.  134. 


632 


INTEKEST. 


there,  tlie  interest  is  to  be  calculated  according  to  the  laws  of 
the  place  where  the  contract  is  to  be  performed  or  the  money 
paid.  The  place  of  performance  is  chiefly  regarded ;  it  locates 
the  contract ;  the  parties  are  presumed  to  have  the  laws  of  that 
place  in  view  in  making  their  contract.^  Where  no  other  place 
is  specified  for  performance  of  a  contract,  it  is  to  be  performed 
where  it  is  made.-  The  law  of  that  place  determines  its  con- 
struction, obligation  and  place  of  payment.'' 

The  place  of  making  a  contract  is  jyrima  facie  where  it  is 
dated ;  but  if  written,  dated  and  signed  in  one  place  and  deliv- 
ered at  another,  the  latter  is  the  place  of  contract.  It  takes 
effect  according  to  the  law  of  the  place  where  the  contract  is 
consummated,  or  where  the  instrument  is  delivered  and  put  in 


1  JjifTray  v.  Dennis,  2  Wash.  C.  C, 
253;  Cowqua  v.  Landebrun,  1  id.  521; 
Busby  V.  Caiuac,  4  id.  296;  Bank  of 
Illinois  V.  Brady,  3  McLean,  268 
Moore  v.  Davidson,  18  Ala,  209 
Leffler  v.  McDermotte,  18  Ind.  246 
Van  Hemert  v.  Porter,  11  Met.  210 
Wintlirop  v.  Carleton,  12  Mass.  4 
Ferguson  v.  Fyffe,  8  Clark.  &  Fin 
121;  Cubbedge  v.  Napier,  62  Ala.  518 
Cash  V.  Kenniou,  11  Ves.  311;  Rob- 
inson V.  Bland,  2  Burr.  1077;  Fan- 
ning V.  Consequa,  17  John.  511;  S.  C. 

3  John.  Ch.  587;  Houghton  v.  Page, 
2  N.  H.  42;  Lapice  v.  Smith,  13  La. 
91;  MuUen  v.  Morris,  2  Pa.  St.  85; 
Slacani  V.  Pomeroy,  6  Cranch,  221; 
Champant  v.  Ranelagh,  Prec.  Ch. 
128;  Thompson  v.  Ketcham,  4  John. 
285;  Smith  v.  Smith.  2  John.  235; 
Ruggles  V.  Keeler,  3  John.  263;  Van 
Schaick  v.  Edwards,  2  John.  Ca.  355; 
Licardi  v.  Cohen,  3  Gill,  430;  Lewis 
V.  Owen,  4  B.  &  Aid.  654;  Quin  v. 
Keefe,  2  H.  Bl.  553;  Bainbridge  v. 
WHcocks,  Baldw.  C.  C.  536;  Royce 
V.  Edwards,  4  Pet.  Ill;  Smith  v. 
Buchanan,  1  East,  6;  Frazier  v.  War- 
field,  9  Sm.  &M.  220;  Lloyd  v.  Scott, 

4  Pet,  205;  Hosford  v.  Nichols,  1 
Paige,  220;  Bayle  v.  Zacharie,  6  Pet. 
634,  648;  Ekins  v.  East  India  Co.  1 


P.  Wms.  395;  Barnes  v.  Newcomb.  9 
Cush.  46;  Bell  v.  Bruen,  1  How,  U, 
S.  169;  Andrews  v.  Pond,  13  Pet,  77; 
Scofield  V.  Day,  20  John.  102;  Healy 
V.  Gorman,  15  N.  J.  L.  328;  Arring- 
ton  V.  Gee,  5  Ired.  L.  590;  Irvine  v. 
Barrett,  2  Grant's  Cases,  73;  Roberts 
V.  McNeeley,  7  Jones'  L,  506;  Sevett 
V.  Doge,  4  Sm,  &  M,  667;  GaiUard  v, 
BaU,  1  Nott,  &Mc.  67;  Peckv,  Mayo. 
14  Vt,  33;  Hunt  v.  Hall,  37  Ala.  702: 
Hanrick  v.  Andrews,  9  Port.  9; 
Chumasero  v,  Gilbert,  24  lU.  293: 
Hawley  v,  Sloo,  12  La.  Ann,  815;  Lit- 
tle V.  Riley,  43  N,  H.  109;  Bolton  v. 
Street,  3  Cold,  31;  Summers  v.  Mills, 
21  Tex.  77;  Whitlock  v.  Castro,  22 
Tex.  108;  Butler  v.  Myer,  17  Ind.  77: 
Bent  v.  Lauve,  3  La,  Ann.  88;  How- 
ard V.  Branner,  23  La,  Ann,  309. 

-'Kavanaugh  v.  Day,  10  R,  I,  393: 
Pomeroy  v,  Ainsworth,  22  Barb,  119; 
Davis  V,  Coleman,  11  Ired,  303;  Don 
V.  Lippman,  5  Clark,  &  Fin,  1;  De 
Wolf  V.  Johnson,  10  Wheat,  367,  383; 
Wilson  V,  Lazier,  11  Gratt.  477: 
Blodgett  V.  Durgin,  32  Vt.  361: 
Thompson  v,  Ketcham,  8  John,  189: 
Short  V.  Trabue,  4  Met,  (Ky,)  299, 

3  Bryant  v.  Edson,  8  Vt,  325;  Banlc 
of  Orange  v.  Colby,  13  N.  H.  520; 
Sherrill  v.  Hopkins,  1  Cow.  103. 


TUE    LAW    OF    "SVIIAT    TLACE   ^VXD   TlilE    GOVERNS.  K)66 

force.^  AVhere  a  note  is  expressly  made  payable  at  a  particular 
place,  its  legal  effect  in  this  particular  cannot  be  changed  by 
parol  evidence.^  But  if  the  note  is  payable  generally,  extrinsic 
evidence  may  be  resorted  to,  to  show  that  it  was  intended  to  be 
paid  at  a  particular  place,  and  thereby  subject  it  to  the  laws  of 
that  place.  In  such  case,  interest  will  be  allowed  at  the  rate 
establishfd  by  the  law  of  that  place.*  A  debt  was  payable  in 
Great  Britain,  and  the  creditor  agreed  wdth  the  debtor,  for  the 
latter's  accommodation,  that  it  might  be  paid  in  one  of  the 
states  in  this  country :  and  it  was  held  that  the  interest  to  be 
computed  thereafter  should  be  computed  according  to  the  rate 
in  that  state.^ 

As  TO  ^'OTEs  AXD  BILLS. —  Bills  of  exchango  and  promissory 
notes  illustrate  these  principles  in  respect  to  the  lex  loci  contvactus. 

The  maker  of  a  promissory  note  and  the  acceptor  of  a  bill  of 
exchange  are  bound  to  pay  the  money  therein  mentioned  at  the 
places  severally  specified  for  such  payment.  To  the  place  of 
payment  mentioned  in  the  note  and  bill,  they  have  given  express 
assent.  They  are  the  parties  primarily  bound,  and  the  agree- 
ments appearing  by  the  face  of  the  paper  are  respectively 
theirs.  The  place  of  making  the  note  or  accepting  the  bill  is 
the  place  where  the  contract  is  made,  and  where,  but  for  the 
appointment  of  another  place  for  payment,  they  would  be 
bound  to  perform  it.  As  the  place  of  performance,  when  ex- 
pressly fixed,  is  the  place  of  contract,  within  the  sense  of  the  lex 
lod,  these  parties  are  held  to  pay  the  bill  and  note  according  to 
its  interpretation  and  force  by  the  law  of  that  place.^  Bills  of 
exchange  are  usually  addressed  to  a  drawee  at  a  particular 
place ;  the  place  so  mentioned  is  the  place  at  which  the  drawer 
agrees  that  his  bill  shall  be  honored ;  and,  when  accepted,  it  is 
the  place  where  the  acceptor  agrees  to  pay  it,  unless  the  bill 

iHyde  v.  Goodnow,  3  N.  Y.  266;  2  Thompson  r.  Ketcham,  8  John. 

Cook  V.   Litchfield,    5    Sandf.    330;  189;  Frazier  v.  Warfield,  9  Sm.  &M. 

Davis  V.  Coleman,  7  Ired.  424;  Fant  220. 

V,   Miller,    17    Gratt.    47;    Cook  v.  3  Austin  v.  Imus,  23  Vt.  286.     See 

Moffat,  5  How.  U.  S.  295;  Wliiston  Senter  v.  Bowman,  5  Heisk.  14. 

V.  Stedder,  8  Mart.  (La.)  95;  Snaith  ^Pearce  v.  Wallace,  1  Har.  &  J.  48. 

V.  Mingay,  1  W.  &  S.  87;  Lenwig  v.  5  See  ante,  p.  632. 
Ralston,  23  Pa.  St.  139. 


634 


INTEREST. 


specifies  another  place  of  payment;  the  place  of  payment  is  the 
place  of  contract,  and  the  laws  there  in  force  govern  it.^ 

The  drawer  of  a  bill,  and  the  indorser  of  a  note  or  bill,  con- 
tract by  the  act  of  drawing  and  indorsing.  Their  contracts  are 
implied.  The  undertaking  of  the  former  is  that  the  drawee 
will  accept  the  bill  and  pay  the  amount  of  it  where,  according 
to  its  face,  it  is  payable;  and  that,  if  the  bill  is  dishonored,  and 
due  notice  of  the  dishonor  is  given  to  him,  he  will  himself  pay 
the  amount  of  the  bill  to  the  holder.  His  agreement,  so  im- 
plied, is  not  to  pay  at  the  place  mentioned  in  the  bill;  but  at 
the  place  where  he  draws  the  bill,  and  where,  consequently,  he 
is  legally  bound  to  perform,  no  other  place  of  performance 
being  implied  or  specified.^    The  act  of  draAving  the  bill  is  in- 


iTodd  V,  The  Bank  of  Ky.  3 
Bush,  626. 

2  Story  on  Prom.  Notes,  §  339,  note; 
Story  on  Bills,  §  154.  Rothschild 
V.  Currie,  1  Q.  B.  43,  proceeded  upon 
the  opposite  theory,  that  the  law  of 
the  place  of  payment  governed  as  to 
all  the  parties.  It  was  the  case  of  a 
bill  drawn  in  England  on,  and  ac- 
cepted by,  a  house  in  France,  pay- 
able at  Paris,  in  favor  of  a  payee 
domiciled  in  England,  by  whom  it 
was  indorsed  in  England,  to  an 
indorsee  who  was  also  domiciled 
there.  The  bill  was  dishonored  at 
maturity,  and  due  notice  was 
given  to  the  payee,  according 
to  the  law  of  France;  but  not, 
as  it  was  suggested,  according 
to  the  law  of  England.  And  it  was 
held  by  the  court,  in  a  suit  brought 
by  the  indorsee  against  the  payee, 
that  the  notice  was  good,  being  ac- 
cording to  the  law  of  Finance,  the  lex 
loci  contractus  of  acceptance.  In  a 
note  to  §  339  of  Story  on  Prom. 
Notes,  this  decision  is  criticised  by 
the  author.  He  says:  "With  the 
greatest  deference  for  that  learned 
Judge  (who  delivered  the  opinion), 
it  seems  to  me  that  the  decision  of 
the  court  is  not  sustained   by  the 


reasoning  on  which  it  purports  to  be 
founded.  The  court  there  admit 
that  the  notification  of  the  dishonor 
is  parcel  of  the  contract  of  the  in- 
dorser; and,  if  so,  then  it  must  be 
governed  by  the  law  of  the  place 
where  the  indorsement  was  made, 
upon  the  very  rules  cited  by  the 
court  from  Pothier.  The  error  (if  it 
be  such)  seems  to  have  arisen  from 
confounding  the  contract  of  the  ac- 
ceptor with  the  contract  of  the 
drawer  and  the  indorser." 

In  a  preceding  part  of  the  same 
note  the  leai-ned  author  says:  "The 
acceptor  agrees  to  pay  in  the  place 
of  acceptance,  or  the  place  fixed  for 
the  payment  (Cooper  v.  Walde- 
grave,  2  Beav.  283);  but  upon  his  de- 
fault, the  di'awer  and  the  indorser 
do  not  agree,  upon  due  protest  and 
notice,  to  pay  the  like  amount  in  the 
same  i)lace;  but  agree  to  pay  the 
like  amount  in  the  place  where  the 
bill  was  drawn  or  indorsed  by  them 
respectively.  Hence  it  is,  that  tlie 
notice  to  be  given  to  each  of  them 
must  and  ought  to  be  notice,  accord- 
ing to  the  law  of  the  place  where  he 
di'aws  or  indorses  the  bill,  as  a  part 
of  the  obligations  thereof.  The 
drawer  and  indorser,  in  effect,  con- 


THE   LAW   OF    WHAT   PLACE   AND   TIME   GOVERNS. 


GSi 


terpreted  by  the  law  of  the  place  where  it  is  drawn.  Its  valid- 
ity and  effect  are  determined  by  that  law ;  ^  and  the  money  due 
there,  by  reason  of  the  violation  of  the  drawer's  undertaking 
that  the  drawee  should  accept  and  pay  according  to  the  tenor 
of  the  bill,  is  the  amount  specified  in  the  bill,  together  with  in- 
terest, after  his  own  default,  if  not  fixed  by  the  bill  at  the  rate 
allowed  by  the  law  of  the  place  of  drawing.^ 


tract  in  the  place  where  the  bill  is 
drawn  or  indorsed,  a  conditional 
obligation;  that  is,  if  the  bill  is  dis- 
honored, and  due  notice  is  given  to 
them  of  the  dishonor,  according  to 
the  law  of  the  place  of  their  con- 
tract, they  wiU  respectively  pay  the 
amount  of  the  bUl  at  that  place. 
The  law  of  the  place  of  the  accept- 
ance or  payment  of  the  bill  has 
nothing  to  do  with  their  contract; 
for  it  is  not  made  there,  and  has  no 
reference  to  it."  See  Shanklin  v. 
Cooper,  8  Blackf.  41,  overruled  in 
Hvmt  V.  Standart,  15  Ind.  33. 

1  Cooper  V.  Waldegrave,  2  Beav. 
382;  Ayrman  v.  Sheldon,  12  Wend. 
439;  Everett  v.  Vendryes,  19  N.  Y. 
436;  Yeatman  v.  Cullen,  5  Blackf. 
240;  Slocum  v.  Pomeroy,  6  Cranch, 
221;  Powers  v.  Lynch,  3  Mass.  77; 
Williams  v.  Wade,  1  Met.  82;  Trim- 
bey  V.  Vignier,  1  Bing.  N.  C.  151; 
Potter  V.  Brown,  5  East,  124;  Hicks 
V.  Brown,  12  John.  142;  Hunt  v. 
Standart,  15  Ind.  33;  Van  Raugh  v. 
Van  Arsdaln,  3  Cai.  154;  Burrows  v. 
Hannegan,  1  McLean,  315. 

2  Bailey  v.  Heald,  17  Tex.  102; 
Bank  of  U.  S.  v.  U.  S.  2  How.  711; 
Raymond  v.  Holmes,  11  Tex.  54; 
Crawford  v.  Branch  Bank,  6  Ala. 
12.  In  Gibbs  v.  Fremont,  9  Exch. 
25,  the  action  was  by  the  indorsees 
of  several  bills  of  exchange  drawn 
by  the  defendant  in  California,  on 
Hon.  James  Buchanan,  at  Washing- 
ton, D.  C.  The  bills  were  made 
payable  to  F.  Hattmann,  and  dis- 
counted by  him  at  the  place 
where  they  were  drawn;  they  were 


dishonored,  and  the  question  was 
whether  the  plaintiff  was  entitled  to 
recover  against  the  defendant  six 
per  'cent.,  the  rate  in  Washington, 
where  they  were  payable,  or  twenty- 
five  per  cent.,  the  rate  of  interest  in 
California,  where  they  were  draw^n. 
The  court  of  excliequer  in  England 
gave  the  plaintiff  interest  according 
to  the  rate  in  California.  In  Hunt 
V.  Standart,  15  Ind.  33,  a  note  made 
and  mdorsed  in  Indiana  was  paya- 
ble in  New  York.  The  indorsement 
was  sufficient,  according  to  the  law 
in  New  York,  but  it  was  not  suffi- 
cient under  the  law  of  Indiana. 
The  question  was  by  what  law  the 
sufficiency  of  the  indorsement  was 
to  be  tested.  It  was  held  that  the 
indorsement  was  governed  by  the 
law  of  Indiana,  where  it  was  made. 
The  following  cases  involved  a 
similar  question  and  were  decided 
in  the  same  way:  Ayrman  v.  Shel- 
don, 12  Wend.  439;  Everett  v.  Ven- 
dryes, 19  N.  Y.  436;  Yeatman  v. 
CuUen,  5  Blackf.  240;  Williams  v. 
Wade,  1  Met.  82;  Trinlbey  v.  Vignier, 
1  Bing.  N.  C.  151;  Burrows  v.  Han- 
negan, 1  McLean,  315;  Holbrook  v. 
Vibbard,  3  111.  465;  Currie  v.  Lock- 
wood,  40  Conn.  349;  Lowry's  Adm. 
V.  Western  Bank,  7  Ala.  120.  See 
Trabue  v.  Short,  5  Cold.  293;  Short 
V.  Trabue,  4  Met.  (Ky.)  299;  Artisans' 
Bank  v.  Park  Bank,  41  Barb.  599 
Trabue  v.  Short,  18  La.  Ann.  257 
Allen  V.  Kemble,  6  Moore,  P.  C.  314 
Allen  V,  Merchants'  Bank,  22  Wend. 
215. 


636  INTEREST. 

The  damages  are  to  be  ascertained  by  the  same  law/  for  not 
having  the  money  for  the  holder  at  the  place  where,  according 
to  the  bill,  it  should  have  been  paid. 

The  contract  imphed  from  indorsement  is,  in  legal  effect,  the 
same  as  that  imphed  from  drawing  a  bill;  the  language  of  an 
indorsement  expressed  in  full  is  a  bill  of  exchange.^  It  is  a  new 
and  substantive  contract ;  ^  and  the  obhgations  of  the  parties 
are  to  be  determined  according  to  the  law  of  the  country  in 
which  it  is  made.''  This  seems  now  to  be  the  doctrine  of  both 
the  English  and  American  courts ;  but  it  has  not  been  established 
without  dissent.* 

The  contract  of  the  drawer  and  indorser  in  relation  to  the 
payment  is  two-fold ;  that  the  acceptor  or  maker  will  pay  ac- 
cording to  the  tenor  of  the  paper  the  amount  therein  men- 
tioned, at  the  specified  time  and  place  of  payment ;  and,  second, 
that  in  case  the  parties  primarily  bound  fail  to  make  such  pay- 
ment, then,  upon  due  notice  of  such  default,  the  drawer  or 
indorser  will  pay  that  amount. 

The  measure  of  their  liability  rests  upon  the  theory  that  they 
should  pay  a  sum  which  will  be  a  full  compensation  to  the 
holder  for  the  acceptor's  and  maker's  default,  consisting  of 
damages  for  being  obhged  to  receive  the  money  at  a  different 
place,  and  interest  during  the  delay  of  payment.  The  interest 
that  the  primary  parties  are  chargeable  with  is  the  rate  of  the 
country  or  state  where  the  paper  was  payable.  They  are  hable 
to  that  rate  because  the  contract  was  to  be  there  performed. 
Although  these  secondary  parties  did  not  agree  to  pay  at  the 
same  place,  they  agreed  to  pay  the  same  debt ;  that  is,  the  face 
of  the  paper.  Now,  if  the  interest  which  the  primary  parties 
are  liable  for  is  an  incident  to  that  debt,  and  follows  it  as  the 

1  Slacam  v.  Pomeroy,  6  Cranch,  ■*  Ibid. ;  McClintock  v.  Cummins, 
251.  3  McLean,  158;  Mix  v.  State  Bank, 

2  Bayley  on  Bills,  ch.  5,  §  3;  Story  13  Ind.  531;  Butlers  v.  Old,  11 
on  Bills,  §  108;  Ayrman  v.  Sheldor^  Iowa,  1. 

12  Wend.  439;  Balliugallis  v.  Glos-         ^  Slianklin  v.  Cooper,  8  Blackford, 

ter,  3  East,  482;  Heylyn  v,   Adam-  41;  Mullen  v.  Morris,  5  Pa.  St.   87; 

son,  2  Burr.  674;  Ogdenv.  Saunders,  Hanrick  v.    Andrews,    9    Port,    10; 

12  Wheat.  213,  341.  Peck  v.  Mayo,  14  Vt.  33;  Rothschild 

3  Slacam  v.  Pomeroy,  6  Cranch,  v.  Carrie,  1  Q.  B.  43;  Phillips  v.  Ini. 
221;  Ed w.  on  Bills,  etc.  263;  Everett  Thurn,  L,  R.  1  C.  P.  463;  Able  v. 
V.  Vendrycs,  19  N.  Y.  436.  McMurray,  10  Tex.  350. 


THE   LAW   OF   "WHAT   PLACE   AJVTD   TIME    GOVERNS.  637 

shadow  follows  the  substance,  why  should  not  the  subsidiary  obli- 
gation, in  respect  to  the  amount,  be  the  same  as  the  primary  ? 
But  the  cases  appear  to  proceed  upon  the  principle  that,  on  the 
default  of  the  primary  parties,  the  immediate  requisite  steps 
being  taken  to  render  the  conditional  hability  of  the  drawer 
and  indorser  absolute,  the  amount  specified  in  the  bill  or  note 
becomes  their  debt ;  that  they  are  not  responsible  for  the  con- 
tinued default  of  the  principals ;  nor  therefore  liable  for  the  in- 
terest chargeable  to  them ;  but  only  for  their  own  default  in  not 
paying  the  sum  which  becomes  their  absolute  debt,  in  pursuance 
of  their  contract  as  drawer  or  indorser.  And  their  agreement 
is  to  pay  at  the  place  where  their  contract  was  made.  They  are 
liable,  on  account  of  their  own  default,  to  pay  interest  accord- 
ing to  the  law  of  that  place.  Their  default  for  which  interest 
is  computed  against  them  dates  from  receiving  notice  of  the 
dishonor  of  the  bill  or  note.^ 

Bonds  to  the  U.  S.  to  accothstt  for  public  moneys. —  An 
apparent  exception  exists  in  the  case  of  official  bonds  executed 
to  the  federal  government.  It  sometimes  happens,  that  the 
bonds  are  executed  by  the  principals  in  one  state  and  the  sure- 
ties in  another,  or  in  different  states.  The  rights  and  duties  of 
sm'eties  are  known  to  be  different  in  different  states.  It  has 
been  decided,  however,  that  such  bond  must  be  treated  as  made 
and  dehvered,  and  to  be  performed  by  all  the  parties,  at  the  seat 
of  government,  upon  the  ground  that  the  principal  is  bound  to 
account  there ;  and  therefore,  by  necessary  impfication,  all  the 
other  parties  look  to  that,  as  the  place  of  performance,  by  the 
law  of  which  they  are  to  be  governed.^ 

Between  parties  residing  and  doing  business  in  different 
STATES. —  Where  parties  meet  together,  and  face  to  face  make 
contracts,  the  place  of  making  it  is  fixed  with  certainty ;  and  also 
the  place  of  performance  where  no  other  is  designated.   But  all 

1  Walker  v.  Barnes,  5  Taunt.  540.  comes  due  and  the  day  when  the 

It  was  held  in  this  case  that  the  drawer  receives  notice  of  the  dis- 

drawer  of  a  bill  which  is  dishonored  honor. 

by  the  acceptor,  is  not  liable  to  pay         -  Story  Conf.    L.    §  290;     Cox  v. 

interest  for  the  time  which  elapses  U.  S.  6  Pet.  172,  202;  Duncan  v.  U. 

between  the  day  when  the  bill  be-  S.  7  Pet.  435. 


638  INTEKEST. 

obligations  to  pay  money  are  not  initiated  in  this  manner.  The 
same  rule,  however,  applies  to  less  formal,  or  more  complicated 
transactions.  Interest  is  allowed  according  to  the  law  of  the 
place  where  an  indebtedness  arises,  and  where  the  money  ought 
to  be  paid.  In  cases  of  accounts  and  advances,  between  parties 
residing  in  different  countries,  inquiry  is  made  to  ascertain,  as 
matter  of  fact,  where,  by  the  intention  of  the  parties,  the  bal- 
ance is  to  be  repaid ;  whether  in  the  country  of  the  creditor  or 
that  of  the  debtor.^  When  ascertained,  the  law  of  that  place 
governs  as  to  interest.  In  the  absence  of  any  stipulation  on  the 
subject,  or  circumstances  indicating  a  different  intention,  the  party 
advancing  money  for  another  is  entitled  to  interest  at  the 
rate  established  at  the  place  where  the  advance  is  made ;  for  the 
contract  to  refund,  implied  by  law,  is  to  pay  with  interest,  ac- 
cording to  the  rate  which  prevails  where  the  transaction  takes 
place.2  This  rule  was  applied  in  favor  of  the  consignee  of  a  ship 
in  South  Carolina,  who  paid  certain  charges  on  account  of  the 
last  sickness  and  funeral  of  the  master,  in  accordance  with  the 
custom  of  the  port  where  the  ship  was.  The  owner,  in  Massa- 
chusetts, was  held  liable  to  reimburse  him  according  to  the  rate 
of  interest  of  the  place  where  the  money  was  advanced.^  So 
when  a  balance  of  account  exists  in  favor  of  a  commission  mer- 
chant, residing  and  doing  his  business  in  one  state,  against  his 
correspondent  in  another,  the  cause  of  action  is  deemed  to  arise 
in  the  state  where  the  creditor  resided  and  did  the  business.* 
And  in  a  case  where  an  agent  advanced  his  money  at  ISTew  Or- 
leans for  his  principal,  residing  in  another  state,  upon  an  under- 
taking of  the  principal  to  replace  it,  by  accepting  and  paying 
drafts  drawn  by  the  agent  at  New  Orleans,  it  was  held  that  the 
debtor  was  liable  to  New  Orleans  interest,  if  he  suffered  the  bills 
to  be  dishonored,  as  well  as  to  any  necessary  loss  on  account  of 
the  difference  of  exchange.^ 

A  Chinese  merchant,  residing  at  Canton,  consigned  goods  to 
a  merchant  in  New  York,  to  be  sold  by  him,  and  the  net  pro- 

1  Grant  v.  Healey,  3  Sum.  523.  *  Coolidge  v.  Poor,  15  Mass.  427. 

2Wintlirop  v.  Carleton,  12  Mass.  ^Lanusse  v.  Barker,  8  Wheat.  101; 
4;  Arnott  v.  Redfern,  3  C.  &  P.  88;  Milne  v.  Moreton,  6  Binn,  353;  Bain- 
Edwards  on  Bills,  713.  bridge  v.  Wilcocks,    Baldw.  C.    C. 

3  Id.  536. 


THE   LAW    OF   "WHAT   PLACE   AND   TIME    GOVEKNS.  639 

ceeds  to  be  remitted  to  the  consignor  at  Canton ;  the  goods  were 
delivered  to  the  agent  of  the  consignee  at  Canton.  The  question 
was,  whether  interest  at  twelve  per  cent.,  according  to  the  cus- 
tom of  Canton,  should  be  charged  during  the  delay  of  payment,  • 
or  whether  the  creditor  was  entitled  only  to  the  rate  of  New 
York.  It  was  held  that  the  goods  consigned  were  at  the  risk  of 
the  consignor  on  their  voyage  to  ISTew  York,  and  the  entire  duty 
of  the  consignee  to  make  sale  and  remittance  of  net  proceeds  was 
to  be  performed  in  New  York.  The  duty  of  remitting  meant  no 
more  than  a  delivery  of  the  money  on  board  a  proper  vessel  at 
New  York,  to  a  suitable  agent,  for  the  purpose  of  being  trans- 
ported to  Canton  b}''  the  usual  route,  and  duly  consigned  to  the 
principal.^  Hence,  the  place  of  contract  may  be  determined  in 
cases  of  this  sort,  where  no  other  intention  is  manifest,  by  a  rule 
of  easy  application ;  that  advances  ought  to  be  deemed  reimbui*s- 
able  at  the  place  where  they  are  made,  and  sales  of  goods  to  be 
accounted  for  at  the  place  where  such  sales  take  place,  or  are 
authorized  to  be  made.^  So,  it  has  been  held,  that  if  a  trustee 
receive  money  as  such,  in  a  foreign  state,  and  apply  it  to  his 
own  use,  he  must  account  for  interest  according  to  the  law  of 
the  place  where  the  money  was  received.*  Loans  in  a  place  bear 
the  interest  of  that  place,  unless  payal)le  elsewhere.* 

On  the  same  principle  of  paying  indebtedness  where  it  arises, 
moneys  due  on  purchases  will  be  referred  to  the  law  of  the  place 
where  a  party,  personally  or  by  letter,  orders  or  requests  to  be 
supplied,  or  a  seller  negotiates  and  completes  a  sale,  unless  there 
is  an  agreement  by  note  or  otherwise  to  pay  somewhere  else.* 
If  a  written  obligation  for  the  purchase  money,  payable  gener- 
ally, is  dated  and  delivered  where  the  sale  is  actually  consum- 
mated, by  negotiation  of  the  terms  and  delivery  of  the  property, 
and  especially  if  one  of  the  parties  resides  there,  it  is  the  place 
of  contract;  and  this  conclusion  will  not  be  affected  though 

•Fanning  v.   Consequa,  17  John.  ^ jjeill  v.  Neill,  31  Miss.  36. 

511;     Cartwright     v.     Greene,     -47  ^  Consequa  v.  Willings,  Pet.  C.  C. 

Barb,  9.  229;    Anon.    Martin    &    Hayw.  149; 

2  Ibid;  Grant  v.    Healey,  3  Sum.  Stewart  v.  Ellice,  2  Paige,  604. 

o23;  Bainbridge  V.  Wilcocks,  Baldw.  ^Mclntyre  v.  Parks,  3  Met.  207; 

C.  C.  535;  Story's  Conf.  L.  §g  283-  Whiston  v.   Stodder,  8   Mart.  (La.) 

285;  HaU  v.  Woodson,  13  Mo.  462.  95. 


640 


INTEKEST. 


such  obligation  be  signed  by  other  parties  as  Sureties  or  as  co- 
obhgors  at  other  places.^ 


1  Arrington  v.  Gee,  5  Ired.  L.  590, 
is  an  instructive  case  upon  the  doc- 
trine of  lex  loci  contractus.  A 
citizen  of  North  Carolina  took  a 
number  of  slaves  to  Alabama,  and 
there  sold  them  to  a  citizen  of  that 
state,  who  agreed  to  give  him  a  bond, 
with  sureties,  for  the  price;  this  bond 
was  executed  by  the  principal  at 
Mobile,  Ala.,  where  it  boi'e  date; 
afterwards  two  sureties  signed  it  in 
North  Carolina,  where  they  resided; 
the  bond  mentioned  no  place  of  pay- 
ment. It  was  held  that  the  sureties, 
as  well  as  the  principal,  were  bound 
for  the  payment  of  interest  accord- 
ing to  the  laws  of  Alabama. 

The  court  say:  "The  contract  of 
sale,  from  which  the  bond  sued  on 
had  its  origin,  was  made  and  com- 
pleted in  Alabama;  and  the  money 
which  the  purchaser  engaged  to  pay 
to  the  seller,  would,  if  not  paid  when 
due,  thereafter  bear  interest  at  the 
rate  of  eight  per  cent. ;  it  not  being 
stipulated  by  the  parties  that  the 
payment  should  be  made  in  any  other 
place.  For  it  is  an  undoubted  prin- 
ciple of  law,  that  not  only  the  validity 
of  a  contract  depends  on  the  lex 
loci  contractus;  but  its  effects,  in- 
cluding the  right  of  the  creditor  to 
interest,  and  its  amount,  depends  on 
it  also.  The  only  question  in  this 
case,  then,  is,  Avhich  is  the  locus  con- 
tractus, so  as  to  apply  to  this  trans- 
action the  above  mentioned  prin- 
ciple. We  think  clearly  it  is  Alabama. 
Beyond  question,  that  is  true  of  the 
original  contract;  namely,  that  of 
the  purchase,  sale  and  delivery  of  the 
negroes.  And  '  the  rate  of  interest 
which  the  debtor  should  pay  is  a 
part  of  that  contract,'  so  that  taking 
a  new  security  here,  expressing  that 


the  rate  of  interest  should  be  eight 
percent.,  or  including  therein  eight 
per  cent,  for  interest  accrued  (unless 
it  be  a  new  contract  for  further  for- 
bearance here),  would  not  be  in 
violation  of  our  law,  but  would  be 
valid.  McQueen  v.  Burns,  1  Hawks, 
476.  Such  is  even  the  case  when  a 
loan  is  made  in  one  country,  and  a 
subsequent  collateral  security  is 
taken  on  real  estate  in  another.  De 
Wolf  V.  Johnson,  10  Wheat.  367. 
Much  more  must  that  be  true,  when 
the  security  taken  in  a  foreigfl.  place 
is  merely  personal.  For  the  original 
contract  obliged  the  debtor  to  pay  a 
particular  rate  of  interest,  and  the 
new  security  is  merely  the  means  of 
more  readily  enforcing  the  perform- 
ance of  that  obligation.  If  then 
Charles  J.  Gee,  the  principal  debtor, 
had  executed  his  note  for  this  debt 
in  this  state,  that  would  not  have 
altered  the  rate  of  interest,  provided 
the  note  should  become  payable 
when  the  debt  would  fall  due  ac- 
cording to  the  original  contract,  and 
did  not  designate  some  other  place 
of  payment;  in  other  words,  if  the 
note  was  but  a  security  for  the  pre- 
existing debt,  and  in  no  respect 
changed  its  character. 

"But,  in  truth,  this  security  by 
bond  Avas  given  by  him  in  Alabama, 
as  well  as  the  debt  originally  con- 
tracted there;  and  the  bond  is  dated 
at  Mobile,  and  specifies  no  other 
place  of  performance.  Now,  al- 
though it  be  true  that  the  rule  of 
the  lex  loci  con  tractus,  before  stated, 
is  Subject  to  the  modification  that  it 
must  yield  to  the  lex  loci  in  quo 
solveret;  yet  that  is  so  only  in  those 
cases  in  which  it  appears  from  the 
contract  that  the  performance  is  to 


THE   LAW   OF   WHAT   PLACE   AXD   TBIE    GOVEEXS. 


641 


A  contract  for  the  payment  of  money  entered  into  witli  such 
circumstances  as  alone  would  bring  it  under  the  operation  of 
the  laws  of  a  particular  place,  as  the  place  of  contract,  will  not 
be  withdrawn  from  the  eJffect  of  these  laws,  merely  by  taking 
security  for  the  performance  of  the  contract  by  mortgage  upon 


be  at  some  other  place.  For  when  a 
contract  states  that  the  parties  had 
in  view  the  law  of  another  country, 
when  they  made  it,  then  it  is  but 
right  to  say  that  the  contract  should 
be  governed  by  the  law  the  parties 
thus  appear  to  have  intended,  rather 
than  by  that  of  the  loci  contractus. 
Thus  notes  made  and  dated  in  Dublin 
for  £100,  mean  Irish  and  not  English 
currency,  unless  they  be.  payable  on 
their  face  in  England;  in  which 
latter  case,  the  money  would  be 
English.  Kearney  v.  King,  3  B.  & 
Aid.  301;  Sproule  v.  Legge,  1  B.  &  C. 
16;  Don  v.  Lippman,  5  Clark.  &  F.  1. 
For  debts  have  no  situs,  and  are  jjay- 
able  everywhere,  including  the  locus 
contractus;  and  therefore  the  law  of 
that  place  shall  govern,  since  it  does 
not  appear  from  the  contract  that 
the  parties  contemplated  the  law  of 
any  other  place.  There  cannot  be 
any  other  rule  but  that  of  the  place 
of  the  origin  of  the  debt,  unless  it 
be  that  where  the  creditor  may  be 
found;  since  the  debtor  must  find 
the  creditor  for  the  purpose  of 
making  payment.  But,  manifestly, 
this  last  can  never  be  adopted,  be- 
cause it  would  vary  with  every 
change  of  domicile  or  residence  of 
the  creditor.  Then,  as  was  observed 
by  Lord  Brougham  in  Don  v.  Lipp- 
man, a  contract,  payable  generally, 
naming  no  place  of  payment,  is  to 
be  taken  to  be  payable  at  the  place 
of  contracting  the  debt,  as  if  it  was 
expressed  to  be  there  i)ayable.  Being 
payable  everywhere,  the  rate  of 
interest  must  be  determined  by  the 
law  of  the  origin,  since  there  is 
Vol.  1  —  41 


nothing  else  to  give  a  rule.  .  .  . 
We  are  to  suppose  that  as  to  Charles 
S.  Gee,  the  bond  expressed  that  it 
was  payable  at  Mobile.  When  the 
others  executed  it,  can  it  be  also 
supposed  tliat  they  insisted  that,  as 
to  them,  the  bond  should  be  payable 
in  North  Carolina?  Certainly  not, 
for  to  say  nothing  more,  it  cannot  be 
presumed  that  the  same  debt  is  pay- 
able at  two  different  places,  unless  it 
be  so  expressed.  It  is  said,  indeed, 
that,  as  in  our  law  the  contract  is 
several,  it  is  the  same  thing  as  if 
these  parties  had  given  distinct 
notes  in  tliis  state  for  the  debt.  But 
it  is  to  be  recollected  that  the  bond 
is  also  joint;  and  therefore  that  all 
three  of  the  obligors  obliged  them- 
selves jointly  to  do  the  same  thing; 
that  is  to  say,  to  pay  a  certain  sum 
of  money;  and  the  only  question  is, 
whether  we  are  to  understand  them 
as  contracting  to  yiay  the  sum  at  one 
and  the  same  place.  For,  if  we  are 
so  to  understand,  there  can  be  no 
doubt,  from  what  has  been  already 
said,  that  place  is  Mobile;  and  then, 
according  to  the  rule  that  the  interest 
is  to  be  regulated  by  the  law  of  the 
place  of  performance,  the  bond 
would  bear  Alabama  interest.  There 
would  have  been  nothing  unlawful 
in  taking  a  bond  in  this  state  for  that 
interest,  as  we  have  before  seen,  as 
it  would  merely  be  a  supplemental 
security  for  a  previous  lawf id  con- 
tract. Now,  it  is  impossible  to  sup- 
pose that  these  defendants  could 
have  contemplated  the  payment, 
being  made  here  by  them,  and  not  at 
Mobile,  by  the  principal.    The  very 


642 


INTEKEST. 


lands  situated  in  another  jurisdiction.  Taking  such  security- 
does  not  necessarily  draw  after  it  the  consequence,  that  the  con- 
tract is  to  be  fulfilled,  where  the  security  is  taken.  The  legal 
fulfilment  of  a  contract  of  loan  on  the  part  of  the  bondsman, 
is  repayment  of  the  money ;  and  the  security  given  is  but  the 
means  of  securing  what  he  has  contracted  for,  which  in  the 
eye  of  the  law,  is  to  pay,  where  he  borrows,  unless  another 
place  of  payment  be  expressly  designated  by  the  contract.^ 
But  where  there  is  nothing  else  to  indicate  where  the  transac- 
tion took  place,  or  where  the  contract  to  pay  is  to  be  per- 
formed, the  law  of  the  place  where  the  real  estate  is  situated 
on  which  the  money  is  secured  will  govern  as  to  the  rate  of  in- 
terest. A  marriage  settlement,  though  made  in  another  state, 
was  held  to  bear  interest,  according  to  the  law  of  South  Caro- 
lina,, because  secured  on  lands  in  that  state.^  Creditors,  resid- 
ing in  Pennsylvania,  where  the  limit  of  interest  was  six  per 
cent.,  held  a  mortgage  made  in  the  state  of  ISTew  York  upon 
lands  situate  in  that  state.     In  the  absence  of  anything  indicat- 


statement  of  the  case  is,  that  tlicy 
executed  the  bond  as  the  sureties  of 
Charles  S.  Gee;  and  in  the  nature  of 
tilings,  thei-efore,  they  expected  to 
be  only  secondarily  liable,  and  they 
were  to  be  liable  for  what  he  had 
bound  himself.  If  that  were  not  so, 
it  would  lead  to  endless  confusion. 
For,  svippose  a  principal  in  Alabama 
and  three  sureties,  one  living  and 
executing  the  bond  in  Louisiana, 
one  in  North  Carolina,  and  one  in 
New  York,  would  there  be  four  dis- 
tinct contracts  as  to  the  rate  of 
interest  ?  It  would  be  absurd  to  hold 
so.  In  reality  the  contract  of  the 
sureties,  in  reference  to  the  question 
under  consideration,  is  one  of  guar- 
anty for  the  performance  of  his 
contract  by  his  principal;  and  there- 
fore each  surety,  no  matter  where  he 
lives,  must  be  liable  for  precisely  the 
same,  which  is  that  for  which  the 
principal  is  liable,  neither  more  nor 
less." 


Findlay  v.  Hall,  12  Ohio  St.  610. 
Three  persons  owed  a  debt  in  Neio 
Mexico,  on  a  promissory  note  pay- 
able in  that  territory.  Two  of  them 
assumed  to  renew  the  note,  and  ac- 
cordingly executed  a  new  note  at 
Santa  Fe.  Afterwards  the  third 
executed  the  same  note  in  Missouri, 
with  a  knowledge  of  all  the  facts. 
It  was  held  that  he  ratified  the 
agreement  made  by  the  co-debtors, 
and  that  the  new  note  was  to  be  re- 
garded as  made  in  and  to  be  gov- 
erned by  the  laws  of  New  Mexico, 
in  respect  to  the  stipulation  for 
interest. 

1  De  Wolf  v.  Johnson,  10  ^Vheat. 
3G7;  Varick  v.  Crane,  4  N.  J.  Eq. 
138;  Story's  Conf.  L.  §  287a;  Kav- 
anaugh  v.  Day,  10  R.  I.  393;  Hos- 
ford  v.  Nichols,  1  Paige,  220;  But- 
ters v.  Olds,  11  Iowa,  1. 

2  Quince  v.  Callender,  1  Desaus. 
160. 


THE   LAW   OF   WHAT   PLACE    AJsD    TIME   GOVEUXS.  613 

ing  where  the  securities  were  payable,  or  showing  that  a  differ- 
ent rate  of  interest  from  that  of  l^ew  York  was  intended,  the 
rate  of  that  state  was  adopted.^  The  general  doctrine  is  that 
the  law  of  the  place  where  the  contract  is  made  is  to  determine 
the  rate  of  interest,  when  the  contract  specifically  gives  inter- 
est ;  and  this  will  be  the  case  though  the  loan  be  secured  by  a 
mortgage  on  lands  in  another  state,  unless  there  be  circmn- 
stances  to  show  that  the  parties  had  in  view  the  laws  of  the 
latter  place  in  respect  to  interest.  When  that  is  the  case,  the 
rate  of  interest  of  the  place  of  payment  is  to  govern.^  Wliere 
a  mortgage  is  a  mere  incident  to  the  debt,  as  security  for  the 
performance  of  a  personal  obligation,  it  wiU,  as  a  security, 
follow  the  condition  of  the  contract  in  respect  to  interest.' 

Contracts  and  securities  executed  to  take  the  place  of  others 
previously  made,  for  the  same  debt,  will  be  construed  in  the 
hght  of  the  antecedent  facts,  and  by  the  law  which  governed 
the  former  contract  or  securities,  if  executed  and  to  be  per- 
fornied  in  the  same  place ;  but  they  may  by  new  provisions  be 
brought  under  other  laws. 

Wheke  the  QUESTiOiSr  OF  USURY  IS  ESTVOLVED. —  Ou  the  qucs- 
tion  of  usury,  courts  have  another  function  than  that  of  merely  ^ 
interpreting  the  contract  of  the  parties  to  effectuate  their  in- 
tention. If  the  contract  is  tainted  with  usiu'y,  the  intention  of 
the  parties  is  wholly  or  in  part  set  aside  and  frustrated.^  In 
determining,  therefore,  the  place  of  contract  with  a  view  to 
disposing  of  the  defense  of  usury,  courts  do  not  limit  them- 
selves to  a  consideration  of  where,  by  the  terms  of  the  contract, 
the  parties  say  it  was  made  or  to  be  performed.  The  transac- 
tion in  its  incipient  details  is  looked  into,  and  even  if  fair  on  its 
face  and  conformable  to  the  law,  it  may  be  shown  to  be  a  trans- 
action belonging  to  a  different  place,  and  to  include  unlawful 
interest.* 

1  Lewis  V.  IngersoU,  3  Abb.  App.         *  Church  v.  IMalloy,  9  Hun,  148. 
Dec.  55.  5  Pratt    v.  Adams,    7  Paige,   615; 

2  2  Kent's  Com.   460;    De  Wolf  v.  McAlhster    v.   Smith,    17    111.    328; 
Johnson,  10  Wheat.  367.  Clayes  v.  Hooker.  6  T.  &  C.  448;  4  , 

3Sands  V.Smith,  1  Neb.  108;  Fitch     Hun,     231;    Agricultural    National 
V.    Remer,    1    Biss.    337;    Cope    v.      Bank  v.  Sheffield,  4  Hun,  421. 
Wheeler,  41  N.  Y.  303;  WiUiams  v. 
Fitzhugh,  37  N.  Y.  444. 


64:i  INTEKEST. 

When  the  contract  specifying  the  amount  reserved  is  express, 
its  form  will  not  hinder  the  inquiry  whether  the  parties  resorted 
to  it,  as  a  means  of  disguising  usury  in  violation  of  the  laws  of 
the  state  where  the  contract  was  made  and  to  be  executed ;  and, 
in  arriving  at  this  intention,  all  of  the  facts  are  to  be  taken 
into  consideration.^  Two  citizens  of  Massachusetts  cannot 
make  a  contract  in  that  state  payable  there  or  in  'New  York, 
and  agree  to  be  governed  by  the  laws  of  Iowa  or  California, 
and  thereby  avoid  the  consequences  of  the  usury.  Kor  can  a 
citizen  of  one  state  make  his  note  in  another  to  a  resident  there, 
payable  in  a  third,  with  interest  as  allowed  in  a  fourth.^  Par- 
ties by  a  mere  meiital  operation  cannot  import  the  law  of  one 
state  into  another  for  the  purpose  of  altering  the  character  of 
a  loan  made  in  the  latter,  and  to  be  there  retained,  without  any 
undertaking  or  duty  to  use  the  money  anywhere  else,  or  any 
understanding  that  in  respect  to  the  use  or  repayment  of  the 
money  the  loan  shall  differ  from  any  other.^ 

But  where  there  is  no  intention  to  evade  the  laws  against 
usury,  parties,  whose  transactions  for  legitimate  purposes  extend 
into  several  states,  may  conform  their  interest  contracts  to  the 
laws  of  the  state  where  the  debt  is  contracted,  or  to  the  laws 
of  the  state  where  it  is  to  be  paid;  in  other  words,  they 
may  adopt  the  highest  rate  allowed  by  the  laws  of  either. 
There  are  many  cases  in  this  country  which  illustrate  both  parts 
of  this  proposition.*  A  leading  case  arose  and  was  decided  in 
Louisiana,  upon  a  note  given  in  that  state,  payable  in  ISTew 
York,  for  a  large  sum,  bearing  interest  at  ten  per  cent.,  the 
legal  rate  of  Louisiana,  the  Kew  York  rate  being  only  seven  per 
cent.  The  defense  of  usury  was  set  up ;  but  it  was  held  that 
the  note  was  not  usurious;  that  although  the  note  was  pay- 
able in  New  York,  yet  the  interest  might  be  stipulated  for 
either  according  to  the  law  of  Louisiana  or  that  of  I^ew 
York.^  In  a  Wisconsin  case,  the  loan  was  made  in  that  state, 
by  parties  residing  there,  and  for  use  there;  but  the  note  given 
was  payable  in  New  York,  with  interest  at  a  higher  than  the 
legal  rate  of  that  state ;  the  note  for  this  loan  was  transferred 

1  Arnold  v.  Potter,  22  Iowa,  194.  *  Miller  v.  Tiffany,  1  Wall.  298. 

^  Id.  5  Depeau  v.  Humphreys,  8  IMart. 

3  Cope  V.  Wheeler,  41  N.  Y.  303.         (La.)  N.  S.  1. 


THE   LAW   OF   WHAT   PLACE   AND   TIME   GOVERNS.  645 

to  a  ISTew  York  bank,  and  afterwards  renewed  by  a  new  note, 
made  and  signed  by  a  part  of  the  makers  in  "Wisconsin  and  by 
one  in  JSTew  York;  this  note  was  given  for  the  same  amount, 
provided  for  the  same  rate  of  interest  as  the  other,  and  was  also 
payable  in  Xew  York,  This  note,  however,  was'  made  to  the 
payee  in  the  first  note,  which  was  thus  paid  by  that  party.  The 
facts  are  discussed  in  the  opinion,  and  considerable  emphasis  is 
put  upon  the  conclusion  that  it  was  a  Wisconsin  transaction. 
Upon  the  point  that  merely  making  the  note  payable  in  ISTew 
York  did  not  make  it  a  New  York  contract,  Cole,  J.,  said : 
"  The  authorities  .  .  .  are  too  clear  and  emphatic  and  leave 
no  room  for  doubt.  They  certainly  establish  the  proposition 
that  if  the  rate  of  interest  be  specified  in  the  contract,  and  it  be 
according  to  the  law  of  the  place  where  the  contract  was  made, 
though  the  rate  be  higher  than  is  lawful  by  the  law  of  the  place 
where  payment  is  to  be  made,  still  the  contract  will  be  vahd 
and  binding."  ^ 

The  same  liberal  rule  is  applied  to  contracts  for  a  greater 
rate  than  that  allowed  by  the  law  of  the  place  where  the  con- 
tract is  made,  such  stipulated  rate  not  exceeding  that  allowed 
at  the  place  of  jiayment.^  An  instructive  case  upon  this  point 
was  decided  in  1867  in  the  state  of  Iowa.  A  rqgident  of  that 
state  negotiated  a  loan  in  Massachusetts.  The  notes  were  dated 
at  iveokulv,  Iowa,  but  delivered  in  Massachusetts,  and  the 
money  there  received ;  the  notes  were  payable  in  ISTew  York, 
and  included  interest  at  a  higher  rate  than  was  allowed  by  the 
laws  of  Massachusetts  or  New  York,  but  legal  in  Iowa.  The 
payment  of  the  notes  was  secured  by  a  trust  deed  of  Iowa  land, 
acknowledged  by  the  borrower  in  Massachusetts,  and  by  his  wife 

1  Richards  v.  Globe  Bank,  12  Wis.  dofson,  4  Am.  L.  Eeg.  549;   S.  C.  3 

692;   Kilgore  v.  Dempsey,    25   Ohio  Handy,  19;  Merchants'  Bank  v.  Gris- 

St.  413;   Bank  of  Georgia  v.  Lewin,  wold,  9  Hun,  561;  Berrien  t.  Wright, 

45  Barb.  340;  Bulme  v.  W^ombough,  26  Barb.  208;   Carnegie  v.  Morrison, 

38  Barb.  352;   Houston  v.  Potts,  64  2  Met.  381;  Kellogg  v.  Miller,  2  Mc- 

N.  C,  38;   Duncan  v.  Helm,   22  La  Crary,  395. 

Ann.  418;  Andrews  v.  Pond,  13  Pet.  2  Lines  v.  Mack,  19  Ind.  223;  New- 

77;  Pratt  v.  Adams,  7  Paige,  615;  man  v.  Kershaw,  10  Wis.  333;  Bol- 

Peck  V.  Mayo,  14  Vt.  33;  Chapman  ton  v.  Street,  3  Cold.  31;   Butters  v. 

V.  Robertson,  6  Paige.  633;   Fitch  v.  Olds,  11  Iowa,  1;  Cockle  v.  Flack,  93 

Remer,  1  Biss,  337;  Atwater  v.  Ro-  U.  S.  344. 


046  INTEEEST. 

ill  Iowa,  to  an  Iowa  trustee.^  The  notes,  though  dated  at  a 
place  in  Iowa,  were  deUvered,  and  therefore  had  their  legal  in- 
ception, in  Massachusetts ;  the  deed  of  trust,  though  conveying 
Iowa  lands,  being  a  mere  security,  would  not  change  the  situs 
of  the  loan ;  the  securities  were  dehvered,  and  the  money  loaned 
received  in  Massachusetts.  These  facts  would  not  influence  the 
interpretation  of  the  contract,  but  they  were  material  on  the 
question  of  its  validity  in  respect  to  the  defense  of  usury.  Stat- 
ing the  case  according  to  its  legal  effect,  independent  of  the 
question  of  usury,  it  was  briefly  this :  A  loan  was  obtained  in 
Massachusetts,  and  a  contract  was  there  made  for  its  repayment 
in  Kew  York.  Had  the  notes  contained  a  promise  generally  to 
pay  interest,  without  specifying  the  rate,  there  can  be  no  doubt 
that  the  laws  of  ISTew  York  would  have  interpreted  that  prom- 
ise, and  the  rate  of  that  state  would  have  been  adopted.  The 
courts  of  any  state  or  country,  where  suit  on  the  note  might  be 
brought,  would  have  adopted  that  rate  because  it  would  be 
deemed  of  the  substance  of  the  contract.  If  the  notes,  instead 
of  being  founded  on  a  loan,  had  been  given  for  lottery  tickets 
sold  and  delivered  in  a  state  where  such  sales  are  unlawful,  and 
were  written  payable  in  a  state  where  such  sales  were  not  unlaw- 
ful, there  can  be  no  doubt  that  the  illegality  of  the  consideration 
by  the  laws  of  the  state  where  the  sale  took  place  would  vitiate 
and  render  invalid  the  note  everywhere. 

The  circumstance  that  the  maker  of  the  note  was  a  resident 
of  Iowa  would  give  no  recourse  to  the  laws  of  that  state  to  de- 
termine the  force  and  effect  of  the  interest  contract  and  supply 
the  rate,  in  the  one  case  supposed ;  nor  would  his  residence  in  a 
state  permitting  traffic  in  lottery  tickets  affect  the  question  of 
illegality  in  the  other.  Chancellor  Kent  says :  ^  "  According  to 
the  case  of  Thompson  v.  Powles,^  it  is  now  the  received  doctrine 
at  Westminster  Hall,  that  the  rate  of  interest  on  loans  is  to  be 
governed  by  the  law  of  the  place  where  the  money  was  to  be 
used  or  paid,  or  to  which  the  loan  has  reference."  ^  And  since 
the  letter  of  a  contract  does  not  preclude  inquiry  into  the  facts, 

1  Arnold  v.  Potter,  23  Iowa,  194.  ^  See  Cockle  v.  Flack,  93  U.  S.  MA; 

2  2  Kent's  Com.  461.  Cope  v.  Wheeler,  41  N.  Y.  303. 

3  2  Sim.  211. 


THE   LAW   OF   WHAT   PLACE   AISTO   TBIE   GOVEENS.  64:7 

and  situation  of  the  parties  to  establish  usury,  it  is  doubtless 
equally  competent  to  show  where  the  loaned  money  was  in- 
tended to  be  used  and  other  facts  to  repel  such  a  charge.  In 
dehvering  the  opinion  of  the  court  in  the  Iowa  case,  just  men- 
tioned, Wright,  J.,  said :  "  The  plaintiff  claims  that  the  parties 
in  good  faith  contracted  with  reference  to  the  laws  of  this  state 
intending  to  make  this  an  Iowa  contract,  and  upon  this  subject 
the  court  instructed  as  follows :  '  If  defendant  went  to  Boston 
and  urged  the  loan  and  promised  ten  per  cent,  under  the  laws 
of  Iowa,  and  aU  the  arrangements  and  contracts  were  made  as 
to  the  laws  of  Iowa  in  good  faith,  and  no  more  than  ten  per 
cent,  was  contracted  for,  then  the  defense  fails  and  the  plaintiff 
can  recover,  ...  Our  opinion  is  that,  if  the  parties  acted 
in  good  faith,  that  is,  if  there  was  no  intention  to  evade  the 
law,  it  was  competent  for  them  thus  to  contract,  and  that  the 
defense  could  not  avail ; '       .      .  the  parties  may,  in  good 

faith,  contract  with  reference  to  the  law  of  the  place  where  the 
payer  resides,  and  where  the  property  upon  which  the  security 
taken  is  located." 

As  a  promissory  note  or  bill  of  exchange  has  no  validity 
until  it  has  been  delivered ;  such  paper  may  be  dated,  signed, 
indorsed  and  written  paj^able  in  any  place  for  a  greater  rate  of 
interest  than  is  there  allowed,  and  not  be  subject  to  the  defense 
of  usury  by  the  laws  of  that  place,  if  such  paper  is  afterwards 
dehvered  and  has  its  inception  where  the  rate  of  interest  therein 
specified  is  lawful ;  and  is  there  dehvered  upon  an  actual  transac- 
tion, of  the  place  of  dehvery;  as  by  being  there  discounted. 
Such  a  note  or  bill  wiU.  be  regarded  as  though  made  where  it  is 
dehvered.^ 

1  Pratt  V.   Adams,   7    Paige,   G36;  in  subsequent  cases.     The  note  sued 

City  Savings  Bank  v.  Bidwell,    29  on  was  signed,  dated   and  written 

Barb.  325;  Bo  wen  v.  Bradley,  9  Abb.  payable  at  Lockiwrt  in  the  state  of 

N.    S.    395;    Fu-st  National  Bank  v.  New  York.     It  was  also  indorsed  at 

Morris,  1  Hun,  680.  that  i^lace.     The  note  was  made  for 

The  case  of  Jewell  v.  Wright,  30  N.  the  pui-pose  of  raising  money  upon 

Y.  259,  cannot  be  I'econcUed  with  it,  and  was  taken  to  the   state  of 

the  doctrine  of  the  text.     It  was,  Connecticut,    there    guarantied    by 

however,  a  decision    by  a  divided  the    ijlaintiff,    and   afterwards    dis- 

coui't,   and  the   doctrine  which    it  counted  in  that  state  at  twelve  per 

lays  down  silently  departed  from  by  cent.     That  was  the  first  negotiation 

the  judge  who  delivered  the  opinion  of  the  note.     It  had   its  inception 


648 


INTEREST. 


How  is  a  contract  to  be  considered  which  is  usurious  where  it 
was  made,  and  usurious,  also,  by  the  laws  of  the  23lace  where,  by 
its  terms,  it  is  to  be  performed  by  payment  ?    If  the  interest 


there.  When  the  note  became  due, 
the  plaintiff  as  guarantor  paid  it. 
Being  delivered  in  Connecticut,  and 
having  no  vitality  before,  it  should 
be  regarded  the  same  as  though 
made  there.  But  being  payable  in 
New  York,  it  was  held  governed  by 
the  laws  of  that  state,  and  void  for 
usury  —  it  having  been  negotiated 
in  Connecticut  for  more  than  the 
legal  rate  of  interest  according  to 
the  laws  of  New  York,  Davies, 
J.,  dissented,  and  his  dissenting 
opinion  would  seem  to  be  in  con- 
sonance with  the  doctrine  of  the 
other  cases.  He  says:  "It  is  con- 
ceded on  the  part  of  the  defend- 
ant, that  the  contract  upon  which 
this  action  is  sought  to  be  main- 
tained is  a  Connecticut  conti-act. 
The  note  sued  on  had  no  vitality 
until  it  was  negotiated  in  that  state. 
It  had  its  inception  there.  The  lex 
loci  contractus  must  therefore  gov- 
ern. Story  on  Conf.  L.  §§  241,  243. 
The  author  says:  '  Generally  speak- 
ing, the  vahdity  of  a  contract  is  to 
be  decided  by*he  law  of  the  i^lace 
where  it  is  made.  If  valid  there,  it 
is  by  the  general  law  of  nations, 
jure  gentium,  held  valid  everywhere 
by  the  tacit  or  implied  consent  of 
the  parties.  The  rule  is  founded  not 
merely  in  the  convenience,  but  in 
the  necessities  of  nations;  for  other- 
wise it  would  be  impracticable  for 
them  to  carry  on  an  extensive  inter- 
course and  commerce  with  each 
other.  Tlie  whole  system  of  pur- 
chases and  sales,  of  mutual  credits, 
and  the  transfers  of  negotiable  in- 
struments, rests  on  this  foundation.' 
By  the  laws  of  Connecticut,  this 
contract,  though  usurious,  was  not 
utterly  void;  but  void  only  as  to  the 


whole  sum  and  amount  reserved  or 
taken  for  forbearance.  Rev.  Stat, 
of  Conn.  1849,  pp.  618,  619;  Compila- 
tion of  1854,  p.  867;  Fisher  v.  Bid- 
well,  27  Conn.  363.  By  these  stat- 
utes, as  constnied  by  the  courts  of 
that  state,  the  holder  of  this  note 
could  have  reco^•cred  thereon  the 
amount  actually  advanced  thereon, 
with  interest  by  way  of  damages. 
This  is  what  the  plaintiff  has  been 
allowed  to  take  a  verdict  for  in  this 
state. 

' '  But  it  is  strenuously  urged  on  the 
part  of  the  defendants,  that  the  note 
in  this  action,  being  made  payable 
in  this  state,  is  to  be  deemed  a  con- 
tract made  in  this  state,  and  to  be 
governed  by  its  laws.  That  when 
the  contract  by  its  terms  is  to  be 
performed  in  a  state  other  than  that 
in  which  it  was  made,  effect  wiU  be 
given  to  the  laws  of  the  place  of 
performance. 

' '  Conceding  the  soundness  of  the 
proposition  as  a  general  rule,  it  will 
be  found  that  the  present  case  pre- 
sents an  exception  well  recognized, 
and  abundantly  sustained  by  au- 
thority. What  does  the  perform- 
ance of  the  contract  require  to  be 
done  in  this  state  ?  It  is  to  repay 
here  the  money  which,  by  the  laws 
of  the  state  of  Connecticut,  the 
plaintiff  might  legally  demand  and 
collect  there.  No  law  of  this  state 
is  violated  by  the  use  of  the  power 
of  the  coiu"t  here,  to  enforce  a  con- 
tract lawful  in  the  place  where  it 
was  made.  There  is  nothing  on  the 
face  of  the  contract  showing  an  in- 
tent to  do  any  act  within  this  state 
prohibited  by  its  laws. 

"  The  law  on  the  point  now  under 
consideration  has  long  been  regarded 


THE   LAW   OF   WHAT   PLACE   AND   TEVIE   GOVERNS. 


649 


aIlo^Yecl  by  the  laws  of  the  place  of  performance  is  higher  than 
that  permitted  by  the  laws  where  the  contract  was  made,  the 
parties  may,  as  has  been  before  stated,  stipulate  for  the  higher 


as  settled  in  this  state,  and  we  see 
no  reason  for  now  disturbing  it.  As 
early  as  in  183f,  Chancellor  Wal- 
worth, in  Chapman  v.  Robertson,  6 
Paige,  634,  held  that  if  a  contract 
for  the  loan  of  money  is  made  here, 
and  upon  a  mortgage  of  lands  in  tlie 
state  which  would  be  valid  if  the 
money  was  payable  to  the  creditor 
here,  it  cannot  be  a  violation  of  the 
English  usury  laws,  although  the 
money  is  made  payable  to  the  cred- 
itor in  that  country,  and  at  a  rate  of 
interest  which  is  greater  than  is 
allowed  by  the  laws  of  England. 
The  chancellor  refers  to  the  opinion 
of  Martin,  J. ,  in  Depeau  v.  Humph- 
reys, 4  Mart.  N.  S.  1,  in  which  opin- 
ion he  says  he  fuUy  concurs.  In 
that  case,  the  supreme  court  of 
Louisiana  held  that  in  a  note  given 
at  New  Orleans,  upon  a  loan  of 
money  made  there,  the  creditor 
might  stipulate  for  the  highest  con- 
ventional interest  allowed  by  the 
laws  of  Louisiana,  although  the  rate 
of  interest  thus  agreed  to  be  paid 
was  higher  than  that  which  coidd  be 
taken  upon  a  loan  by  the  laws  of  the 
state  where  such  note  was  made 
payable.  The  precise  point  pre- 
sented in  this  case  arose  in  that  of 
Pratt  V.  Adams,  7  Paige,  636.  There 
certain  promissory  notes  were  made 
and  indorsed  in  this  state,  and  were 
made  payable  at  banks  in  this  state, 
and  taken  into  the  state  of  Pennsyl- 
vania, and  first  negotiated  there, 
and  then  discounted,  usuriously,  by 
the  laws  of  this  state.  By  the  laws 
of  that  state,  if  the  usurious  pre- 
mium was  actually  received,  the 
usurer  was  liable  to  forfeit  the  wliole 
amount  of  the  value,  to  be  recovered 
in  a  qui  tarn  action  for  the  use  of 


the  state,  and  the  common  informer, 
but  he  had  the  legal  right  to  recover 
the  loan  and  legal  interest  from  the 
borrower.  The  chancellor  held  that 
the  contract  must  be  governed  by 
the  laws  of  Pennsylvania,  although 
the  note  was  payable  at  a  bank  in 
New  York,  and  that  the  amount 
actually  lent  upon  the  note,  with 
the  legal  interest  thereon,  formed  a 
good  consideration  for  a  direction  to 
the  trustees  to  i^ay  that  money  out 
of  the  assigned  property,  to  the  bank 
in  Pennsylvania  which  held  and  dis- 
counted tlie  notes.  The  like  doc- 
trine lias  been  aflfirmed  in  the  su- 
preme coui"t  of  this  state  in  City 
Savings  Bank  v.  Bidwell,  29  Barb. 
325.  That  action  was  upon  a  prom- 
issory note  made  by  the  defendant, 
Bidwell,  on  July  20,  1855,  payable  to 
the  order  of  defendant  Parker,  eight 
mouths  after  date,  at  the  Bank  of 
New  York,  and  indorsed  by  Parker. 
The  note  was  signed  by  Bidwell,  at 
the  city  of  New  York,  and  there  in- 
dorsed by  Parker,  as  an  accommoda- 
tion indorser  for  the  use  and  benefit 
of  Bidwell.  The  note  so  signed  and 
indorsed  was  delivered  at  the  city  of 
New  York,  to  one  Post,  to  get  dis- 
counted, for  the  use  and  benefit  of 
Bidwell,  at  the  city  of  New  Haven, 
where  Post  then  resided.  Post  pre- 
sented the  note  to  the  plaintiffs,  for 
discount,  at  their  office  in  New 
Haven,  who  discounted  the  same  at 
the  rate  of  twelve  per  cent,  per 
annum.  The  referee  found,  as  mat- 
ter of  law,  that  the  ti'ansaction  was 
not  affected  by  the  laws  of  this  state 
against  usury,  and  gave  judgment 
for  the  plaintiffs.  The  same  was 
aflirmed  at  general  term.  The  court, 
in  its  opinion,  say,    it    is  claimed 


650 


INTEKEST. 


interest  without  incurring  the  penalties  of  usury.     But  if  the 
contract  is  made  payable  in  another  state  for  the  mere  purpose 


that  the  note  being  payable  in  New- 
York,  the  question  must  be  deter- 
mined by  the  laws  of  New  York. 
If  the  thing  to  be  done,  on  the  face 
of  the  contract,  was  contrary  to  the 
laws  of  New  York,  the  rule  that  the 
law  of  the  place  of  performance 
must  control,  might,  perha^js,  apply. 
But  in  this  case,  the  loan  was  clearly 
made  in  Connecticut,  and  the  ex- 
cessive interest  was  taken  there.  If, 
therefore,  no  more  interest  was 
taken  than  the  laws  of  that  state  al- 
lowed, it  surely  cannot  be  illegal  to 
repay  it,  in  the  state  of  New  York. 
So  in  the  case  at  bar.  The  plaintiff 
was  entitled,  by  the  laws  of  the 
state  where  the  money  was  ad- 
vanced, to  recover  such  advance, 
and  the  damages  for  its  retention. 
It  is  not  unlawful,  by  the  laws  of 
this  state,  for  the  parties  to  agree  to 
pay  here  what  it  is  lawful  to  recover 
there."  See  Clayes  v.  Hooker,  4 
Hun,  231. 

In  Bowen  v.  Bradley,  9  Abb.  N.  S. 
395,  suit  was  brought  on  a  note 
dated,  signed  and  written  payable  at 
Buffalo,  in  the  state  of  New  York. 
It  provided  for  ten  per  cent,  inter- 
est for  the  time  the  note  had  to  i*un. 
It  was  delivered  to  the  plaintiff  in 
Chicago,  in  payment  or  on  account 
of  a  precedent  debt  contracted 
there.  This  delivery  was  the  legal 
inception  of  the  note. 

The  referee,  on  the  authority  of 
Jewell  v.  Wright,  held  that  the  note 
being  payable  in  New  York,  its  va- 
lidity was  to  be  tested  by  the  usury 
laws  of  that  state. 

Hasten,  J.,  said:  "I  am  embar- 
rassed as  to  what  action  this  court 
should  take  upon  the  case  in  hand. 
It  is  a  delicate  matter  to  question 
the  decision  of  a  court  to  whose  re- 


view our  judgments  are  subject. 
.  .  .  The  doctrine  of  Jewell  v. 
Wright,  if  maintained,  must,  under 
the  diversified  rules  and  regulations 
of  the  different  states  of  the  Union, 
give  rise  to  conflict  in  the  adminis- 
tration of  justice,  disturb  the  com- 
ity and  embarrass  the  intercourse 
which  should  exist  between  them. 
The  decision  in  that  case  is,  in  my 
judgment,  contrary  to  law,  to  sound 
reason,  and  the  necessity,  of  com- 
merce, I  believe  that  the  court,  on 
that  occasion,  in  the  haste  conse- 
quent upon  the  large  amount  of 
business  which  was  pressing  upon 
it,  confused  or  failed  to  distinguish 
between  the  principles  of  law  by 
which  the  validity  of  purely  per- 
sonal contracts  is  to  be  tested,  and 
the  lilies  which  have  been  adopted 
for  the  intei^pretation  of  them.  I 
remark  that  Jew^ell  v.  Wright 
was  decided  in  March,  1864,  but  not 
reported  in  the  regular  reports  until 
1866.  In  November,  1865,  The  Bank 
of  the  State  of  Georgia  v.  Lewiai,  45 
Barb.  340,  was  decided  by  the  su- 
preme court  at  general  term.  It 
was  an  action  on  a  bill  of  exchange 
drawn  at  Savannah,  Georgia,  upon 
the  defendant,  payable  at  the  city  of 
New  York,  and  accepted  by  him.  It 
was  discounted  by  him  at  Savannah 
at  the  rate  of  eight  per  cent,  per 
annum.  By  the  law  of  Georgia,  the 
rate  of  interest  is  seven  per  cent,  per 
annum.  And  if  a  greater  rate  of  in- 
terest is  reserved,  the  borrower  is 
liable  only  for  the  principal  sum 
without  interest.  The  defense  was 
usury  under  the  law  of  New  York. 
The  court  overruled  the  defense, 
holding  that  the  fact  of  the  bill  be- 
ing payable  in  New  York  did  not 
affect  its  validity.    The  opinion  of 


THE   LAW   OF   WHAT   PLACE   AND   TIME   GOVEKISrS. 


651 


of  evading  the  usury  laws  of  the  place  where  the  contract  was 
made,  the  form  of  the  transaction  will  not  sustain  it.     The 


tlie  court  Avas  delivered  'oy  the 
learned  judge  who  delivered  the 
opinion  in  the  court  of  appeals  in 
Jewell  V.  Wright.  He  cited  iJie 
case  of  Palmer  v.  Wombough,  38 
Bax'b.  353,  with  approbation;  but 
made  no  reference  to  Jewell  v. 
Wright.  Palmer  v.  Wombough  was 
decided  in  November,  1862,  by  the 
supreme  coux-t  at  general  term. 
The  same  judge  participated  in  its 
decision.  In  that  case  a  loan  of 
$5,000  was  made  at  St.  Paul,  Minne- 
sota, whei'e  the  i)arties  may  law- 
fully agree  upon  any  rate  of  interest, 
and  a  note  was  taken  therefor  on 
time,  payable  at  a  bank  in  Addison, 
N.  Y.,  with  interest  (by  its  terms) 
at  the  rate  of  twenty-six  and  a  half 
per  cent,  per  annum.  The  question 
was,  whether  the  laws  of  New  York 
or  Minnesota  were  to  control,  as  to 
usury.  The  court  answered  that  the 
laws  of  Minnesota  w^ex'e  to  contx-ol, 
and  that  the  note  was  valid.     .     .     - 

' '  Parties  to  a  personal  contract 
may  stipixlate  by  what  laws  or 
iTiles  their  contract  shall  be  inter- 
preted, i.  e.,  those  by  which  their 
intent  and  meaning  is  to  be  ascer- 
tained, and  then  those  laws  and 
rules  become  a  part  of  the  contract 
itself.  But  the  validity  of  their  con- 
tx"act  nxust  be  tested  by  the  law, 
which  they  can  neither  alter  nor 
evade.  And  the  courts,  and  not  the 
pax'ties,  mxxst  detex-mine  by  what 
law  the  test  is  to  be  made. 

"  1.  As  to  the  validity  of  a  purely 
personal  contract:  Evexywhex'e,  in 
civilized  nations,  by  just  comity  and 
pixblic  convenience,  it  is,  as  a  genex-al 
xTile,  essential  to  the  validity  of  a  pex-- 
sonal  contract  that  it  be  entered  into 
in  the  manxier  and  form  reqxxired  by 
the  law  of  the  i^lace  whex-e  it  is 
made.      If    valid   in   the    country 


where  it  is  made,  and  is  to  be  i)er- 
formed,  it  is  valid  everywhere. 

' '  If  made  in  contravention  of  the 
law,  or  of  the  clear  and  settled 
policy  of  the  government  whex-e  it 
was  nxade,  and  is  to  be  performed,  it 
wiU  not,  upon  the  plainest  reason, 
be  enforced  by  the  courts  of  sixch 
couxxtry,  and,  by  comity,  is  invalid 
evexywhere. 

"  If  it  be  made  in  a  state  or  country 
whei-e  it  would  be  lawful  to  do  all 
the  acts  which,  by  the  contract,  it  is 
agreed  shall  be  done,  but  provides 
that  one  or  more  such  acts  shall  be 
perf  ox-med  in  another  state  or  coun- 
txy,  in  violation  of  its  known  laws, 
the  couxts  (at  least  of  the  latter  state 
or  country)  will  not  enforce  the  con- 
tract. Nor  shoixld  the  coux-ts  of  any 
civilized  countxy  enforce  it.  If  en- 
tered into  according  to  the  law  of 
the  place  whex-e  it  was  made,  and, 
by  its  terms,  some  act  is  to  be  done 
in  that  state  or  counti-y,  and  other 
acts  ax-e  to  be  done  in  other  states 
and  countx-ies,  the  test  whether  it  is 
valid  everywhex-e  is,  does  it  require 
an  act  to  be  done  in  a  state  or  coun- 
tx-y  in  violatioxi  of  its  laws  ? 

"2.  Interpretation:  Contx-acts  are 
to  be  constx-ued  according  to  the  in- 
tention of  the  parties  to  them. 

"  When  a  personal  contract  is  made 
in  one  coxxntxy,  and  is  to  be  per- 
fox-med  in  another,  the  question 
arises,  whex-e  thei-e  is  a  difference 
between  the  laws  of  the  two  coun- 
tries, how  did  the  parties  intend 
that  part  of  the  contract,  which,  by 
its  terms,  is  to  be  perfornxed  in  a 
diffex-ent  countxy  from  that  in  which 
it  was  xnade,  should  be  performed, 
whether  accox-ding  to  the  law  of  the 
place  whex-e  nxade,  or  the  law^  of  the 
place  of  performance? 

"  If  a  different  intention  be  not  ap- 


G52 


INTEKEST. 


contract  will  be  disposed  of  by  tlie  laws  of  the  state  in  which. 
it  is  made.     The  court  will  decide  according  to  the  real  object 


parent,  the  rules  of  interpretation 
pronounce  tlie  intention  to  be,  that 
it  should  be  performed  according  to 
the  law  of  the  place  of  performance, 
and  thus  the  law  of  that  place  is 
silently  incorporated  into  the  con- 
tract. Thus,  if  a  promissory  note 
be  made  in  a  state  where  there  are 
days  of  grace,  and,  by  its  terms,  it  is 
payable  in  a  state  where  there  are 
none;  or,  vice  versa,  payment,  by 
force  of  the  above  stated  rule  of  in- 
terpretation, must  be  made  accord- 
ing to  the  law  of  the  place  of  pay- 
ment. And  yet  the  parties  could 
agree  upon  a  different  rule  of  inter- 
pretation. 

"  So,  too  (for  I  consider  it  to  be  set- 
tled law),  if  a  promissory  note,  pay- 
able with  interest,  withoiit  specify- 
ing the  rate,  be  made  and  delivered 
in  one  state,  and,  by  its  terms,  is 
payable  in  another  state,  there  being 
a  different  rate  of  interest  in  the  two 
states,  the  note,  by  force  of  the 
above  rule  of  interpretation,  is  to  be 
paid,  with  interest,  according  to 
the  rate  of  the  state  where  payable, 
whether  the  note  be  greater  or 
smaller  than  that  of  the  state  where 
the  note  was  made. 

' '  Such  a  rule  of  construction  as  to 
the  rate  of  interest  would  not  have 
been  applied,  if  in  either  case  it 
would  render  the  contract  illegal,  for 
that  construction  will  be  given  a 
contract  which  will  render  it  valid, 
if  it  can  reasonably  be  done. 

"  The  mvmicipal  laws  of  a  state  or 
country  do  not  extend  bej^ond  its 
territorial  boundaries.  The  policy  of 
the  usury  laws  is  strictly  internal. 

"  I  am  unable  to  understand  how, 
in  a  case  like  the  one  in  hand,  there 
could  ever  have  been  any  doubt  or 
conflict.  The  consideration  on  the 
part  of  the  plaintiffs,  for  the  promise 


of  the  defendants,  is  executed  — 
lawfully  executed,  at  the  place 
where  it  was  done,  and  the  promise 
of  the  defendants  is  to  do  an  act 
here,  innocent  in  itself,  to  wit:  to 
pay  a  certain  sum  of  money. 

"The  traffic  in  lottery  tickets  is 
lawful  in  several  of  the  states  of  this 
Union,  but  is  prohibited  here  —  is  a 
misdemeanor  here.  If,  upon  the  sale 
and  delivery  of  lottery  tickets  in  a 
state  where  it  is  la^vful,  by  one  of 
its  citizens  to  another,  the  purchaser 
should,  for  the  price,  draw  his  bill 
of  exchange  on  his  banker  or  corre- 
spondent here,  or  give  his  promis- 
sory note  paj'able  in  that  state,  would 
the  bill  or  note  be  illegal  or  invalid  ? 
Or,  if,  in  a  state  where  the  traffic  is 
lawful,  a  contract  should  be  entered 
into  by  which  one  of  the  parties  to 
it  should  agree  to  sell  and  deUver  to 
the  other  party,  certain  lottery 
tickets  on  a  certain  day,  and  at  a 
certain  place  in  such  state,  and  in 
consideration  thereof  the  other 
party  should  agree  to  pay  him  a  cer- 
tain sum  of  money,  on  a  certain  day, 
at  a  certain  place  in  this  state,  would 
the  contract  be  illegal  and  void? 
And  would  it  make  any  difference  if 
the  contract,  by  its  very  terms,  pro- 
vided, that  'this  contract  is  to  be 
governed  by  the  laws  of  the  state  of 
New  York  ? '  I  know  of  no  pi'inci- 
ple  upon  which  it  can  logically  be 
maintained,  that  such  a  bill,  note  or 
contract  would  be  invalid.  No  law 
or  policy  would  be  violated.  The 
transaction  would  be  lawful  where 
it  was  made.  The  act  (payment  of 
the  money)  to  be  done  in  this  state, 
is  lawful  here,  and  neither  the  law 
nor  policy  of  this  state,  in  respect  to 
such  traffic,  extends  beyond  its  ter- 
ritory. Commonwealth  of  Kentucky 
V.   Bossford,  6  HiU,  526;    Hyde  v. 


THE   LAW   OF   WHAT   PLACE   A^B   TCSIE   GOVERXS. 


653 


of  tlie  parties.^  An  action  was  brought  on  a  bill  of  exchange 
drawn  in  Xew  York,  pa^^able  in  Alabama,  for  an  antecedent 
debt,  and  included  a  sum  in  addition  greater  than  the  interest 
in  either  state  for  the  time  of  forbearance.  The  court  say,  the 
defendants  allege  that  the  contract  was  not  made  with  refer- 
ence to  the  law  of  either  state,  and  was  not  intended  to  con- 
form to  either ;  that  a  rate  of  interest  forbidden  by  the  laws  of 
'New  York,  where  the  contract  was  made,  was  reserved  on  a 
debt  actually  due ;  and  that  it  was  concealed  under  the  name 
of  exchange,  in  order  to  evade  the  law.  If  this  defense  be 
true,  and  shall  be  so  found  by  the  jury,  the  question  is  not 
which  law  shall  govern  in  executing  the  contract,  but  which  is 
to  decide  the  fate  of  a  security  taken  upon  a  usurious  contract 


Goodnow,  3  N.  Y.  2G8;  Merchants' 
Bank  v.  Spalding,  12  Barb.  303;  and 
9  N.  Y.  53. 

' '  Nor  can  the  parties  to  a  contract, 
■which  provides  that  an  act.  shall  be 
done  in  a  state  or  country  where  it 
is  unlawful  to  do  such  act,  give  le- 
gality to  the  contract,  by  providing 
that  the  lawfulness  of  the  act  shall 
not  be  determined  by  the  law  of  the 
state  or  country  where  it  was  or  is 
to  be  done,  but  by  the  law  of  some 
other  selected  state  or  country. 

"It  is  equally  plain  to  my  mind, 
that  the  parties  to  a  contract,  bj^ 
which  a  certain  act  is  to  be  done  at 
a  place  where  it  is  lawful  to  do  the 
act,  cannot,  by  force  of  such  act, 
make  the  contract  illegal,  by  stipu- 
lating that  the  contract  is  to  be  gov- 
erned by  the  law  of  anotlier  country 
where  it  is  unlawful  to  do  such  act. 

"  Tiiat  would  be  to  put  the  citizen 
or  subject  above  the  government  and 
its  courts,  and  to  subvert  the  theory 
and  policy  of  government. 

"  The  weight  of  authority  seems  to 
be,  that  in  a  note  made  in  one  state 
and  payable  in  another,  interest  at 
the  highest  rate  allowed  by  the  laws 
of  either  state,  may  be  lawfully  re- 
served. 


"We  are  of  the  opinion  that  the 
usury  law  of  this  state  has  no  ap- 
pUcation  to  the  case  before  us,  and 
that  the  note  in  suit  is  valid.  De- 
peau  V.  Humphreys,  8  Mart.  (N.  S.)  1; 
Peck  V.  Mayo,  14  Vt.  33;  Chapman 
V.  Robertson,  5  Paige,  617;  Pope  v. 
Nickerson,  3  Story,  465.  See  First 
National  Bank  v.  Morris,  1  Hun, 
680." 

In  Hanrick  v.  Andrews,  9  Port. 
9,  a  loan  was  made  in  New  York, 
and  the  interest  was  paid  there  on  it, 
and  the  bill  there  drawn  payable  in 
Alabama,  without  interest  —  and  it 
was  held  to  be  governed  by  the  la'w 
of  New  York,  and  usurious.  The  in- 
terest contract  was  made  and  per- 
formed in  that  state  at  the  time  of 
the  loan.  The  court  held  that  an  in- 
strument, as  to  its  form,  and  the 
formahties  attending  its  execution, 
the  mode  of  consti-uing  it,  the  mean- 
ing to  be  attaclied  to  the  expressions 
by  which  the  parties  have  con- 
ti-acted,  and  the  nature  and  validity 
of  the  contract,  is  subject  to  the  law 
of  the  place  where  it  is  made;  and 
that  the  law  of  the  place  where  it  is 
to  be  executed  must  regulate  its 
performance. 

1  Story's  Conf.  L.  §  293a. 


654  rNTEEEST. 

which  neither  will  execute.  Unquestionably  it  must  be  the  law 
of  the  place  where  the  agreement  was  made,  and  the  instru- 
ment taken  to  secure  its  performance.  It  was  remarked  that  a 
contract  of  this  kind  cannot  stand  on  the  same  principles  with 
Si  I}07ia  Jide  agreement  made  in  one  place  to  be  executed  in  an- 
other. In  the  last  mentioned  cases  the  agreements  were  per- 
mitted by  the  lex  loci  contractus;  and  will  even  be  enforced 
there,  if  the  parties  be'  found  within  its  jurisdiction.  But  the 
same  rule  cannot  be  applied  to  contracts  forbidden  by  its  laws 
and  designed  to  evade  them.  In  such  cases  the  legal  conse- 
quences of  such  an  agreement  must  be  decided  by  the  law  of 
the  place  Avhere  the  contract  was  made.^ 

^^^hat  would  be  the  fate  of  a  contract  made  with  express 
reference  to  the  laws  of  the  place  of  payment,  though  stipulat- 
ing interest  above  the  rate  allowed  there,  as  well  as  where  it 
was  made,  is  not  decided  by  that  case.  The  contract,  if  in- 
tonded  to  evade  the  usury  laws  of  Xew  York,  and  usurious,  if 
governed  b}^  those  laws,  is  void.  But  if  made  with  reference 
to  the  laws  of  Alabama,  and  usurious  by  those  laws,  it  is  not 
wholly  void.  A  contract  of  the  latter  kind  is  in  part  enforced 
by  those  laws.  May  parties  in  'New  York,  where  the  limit  of 
interest  is  seven  per  cent.,  make  a  contract  in  a  transaction 
which  legitimately  extends  into  Alabama,  for  the  payment  of 
money  there  at  a  rate  exceeding  both  the  rate  of  New  York 
and  that  of  Alabama,  and  have  the  benefit  of  the  laws  of  the 
latter  state  to  determine  the  rights  of  the  parties,  if  the  defense 
of  usury  be  made  ? 

In  an  Indiana  case,  a  resident  of  that  state  borrowed  money 
of  an  Indiana  cift'poration  in  that  state,  upon  a  draft  drawn 
there,  on  New  York,  specifying  six  per  cent,  interest  for  the 
time  it  had  to  run ;  it  was  discounted  at  the  rate  of  twelve  per 
cent.,  and  the  question  was,  by  what  law  the  fate  of  the  con- 
tract was  to  be  determined.  It  was  held  to  be  an  Indiana  con- 
tract because  the  transaction  was  a  loan  made  there,  and 
because  the  bill  specified  the  Indiana  rate  of  interest.^ 

A  resident  of  Massachusetts  applied  to  a  citizen  of  New  York 
for  a  loan,  and  the  latter  agreed  to  lend  him  a  sum  at  eight  per 

1  Andrews  v.  Pond,  13  Peters,  2  Mix  v.  Madison  Ins.  Co.  11  Ind. 
P5.  117. 


THE   LAW   OF   WHAT   PLACE   AKD   THIE   GOVERNS.  655 

cent,  on  security  of  real  estate  situate  in  Massachusetts ;  tlae 
lender  wrote  the  borrower  to  send  him  the  note  and  mortgage, 
which  were  accordingly  sent,  and  the  lender  caused  the  loan  to 
be  paid  over  to  the  borrower  in  Massachusetts.  Hence,  the 
contract  sued  on  had  its  legal  inception  in  I^ew  York;  and 
the  consideration  therefor,  the  loan,  passed  to  the  maker  of  the 
note,  in  Massachusetts ;  the  contract  was  held  to  be  governed 
by  the  laws  of  that  state,  though  the  agreed  rate  of  interest 
was  usurious  by  the  laws  of  both  states.  It  was  deemed  a 
Massachusetts  contract  because  the  important  facts  of  the 
transaction  took  place  in  that  state.^  An  important  case  in 
New  York  seems  to  answer  the  question  just  stated.-  A  New 
York  corporation  negotiated  a  loan  of  two  bank  corporations 
of  Philadelphia ;  the  bargain  was  made  in  New  York,  and  the 
contract  for  repayment,  in  the  form  of  certificates  of  deposit, 
was  made  in  New  York,  stating  the  deposit  of  the  money 
loaned  with  the  borrowing  corporation  in  New  York ;  these  cer- 
tificates were  payable  on  time,  at  Philadelphia,  with  interest  at 
six  per  cent.,  the  legal  rate  of  Pennsylvania.  The  loan  was  to 
be  in  depreciated  paper,  but  was  paid  in  an  equivalent  of  cash 
funds;  and  the  difference  between  the  amount  received  and  that 
stated  in  the  certificates  of  deposit,  it  was  claimed,  rendered 
the  loan  usurious  by  the  laws  of  both  :  ates.  Without  decid- 
ing absolutely  whether  the  contract  was  usurious,  a  majority  of 
the  court  concurred  in  the  conclusion  that  if  it  was  usurious  by 
the  laws  of  both  states,  it  should  be  governed  by  the  law  of 
Pennsylvania,  where  the  loan  was  to  be  repaid. 

In  an  Illinois  case,^  a  suit  in  chancery  was  commenced  for  the 
purpose  of  settling  the  rights  of  different  creditors  in  the  pro- 
ceeds of  a  mortgage  given  for  their  common  benefit.  The  de- 
mand of  one  creditor,  a  banlc,  was  upon  acceptances  of  bills  of 
exchange  drawn  and  accepted  in  Indiana,  and  payable  in  New 
York.  These  bills  were  based  upon  actual  transactions,  namely, 
the  shipment  of  hogs  and  cattle.  Where  the  transactions  took 
place  does  not  very  distinctly  appear ;  but  from  some  indications 
in  the  report,  it  is  inferred  that  they  took  place  in  Indiana. 
Two  of  the  biUs  were  purchased  by  the  bank  with  a  reservation 

1  Pine  V.  Smith,  11  Gray,  38.  3  Adams  v.  Robertson,  37  lU.  45. 

2  Curtis  V.  Leavitt,  15  N.  Y.  9-29G. 


656 


INTEREST. 


of  seven  and  a  half  per  cent,  interest,  wtLich  was  greater  than. 
the  rate  allowed  by  law  in  either  Indiana  or  New  York ;  and  the 
question  was  discussed,  whether  the  fate  of  the  security  should 
be  determined  by  the  law  of  New  York  or  Indiana.  It  was 
held  that  the  law  of  Indiana  was  to  govern  because  the  contract 
was  made  there.^ 


1  On  a  rehearing  of  this  case,  the 
court  adopted  an  opinion  prepared 
by  one  of  the  judges  who  sat  at  the 
first  liearing  and  not  at  the  second. 
In  this  oi>inion  it  is  said:  "  Great  con- 
flict of  opinion  has  prevailed  in  re- 
spect to  tlie  laws  affecting  the  valid- 
ity of  contracts  made  in  one  country, 
but  to  be  performed  in  another. 
The  laws  of  a  country  where  a.  con- 
tract is  made  are  obligatory  upon 
the  parties;  and,  upon  j^rinciple,  no 
contract  declared  void  by  these  laws 
ought  to  be  enforced  in  any  other 
country.  As  an  exception  to  the 
rule,  it  has  been  held  that  no  nation 
is  bound  to  take  notice  of  or  protect 
the  revenue  laws  of  another  coun- 
try; but  this  exception  has  no  founda- 
tion in  principle,  although  it  is  so 
firmly  established  that  courts  cannot 
now  overtiu'u  it.  No  man  ought  to 
be  heard  in  a  court  of  justice  to  en- 
force a  contract  founded  in  or  aris- 
ing out  of  moral  or  political  turpi- 
tude, or  in  fraud  of  the  just  rights 
of  the  country  in  which  the  con- 
tract was  made.  Story's  Conf.  L. 
p.  435.  The  laws  of  every  country 
allow  parties  to  enter  into  ojoligations 
with  reference  to  the  laws  of  the 
coTintry  where  such  obligations  are 
to  be  pei'f ormed ;  and  although  such 
obligations  may  not  be  in  accord- 
ance with  the  laws  of  the  country 
where  they  are  made,  as  regards  obli- 
gations to  be  performed  in  that 
country,  they  may  be  strictly  in  ac- 
cordance with  such  laws  as  to  obli- 
gations to  be  performed  in  other 
countries.     Tlie  riglit  to  enter  into 


contracts  with  reference  to  the  laws 
of  another  country  is  one  allowed 
by  nations  for  the  convenience  of 
those  transacting  business  within 
their  x'espective  territorial  limits,  to 
enable  them  to  obtain  such  riglits  as 
they  could  have  secured  in  the  coun- 
try where  the  contract  is  to  be  per- 
formed, by  a  just  observance  of  its 
laws.  No  nation  can  justly  be  re- 
quu'ed  to  allow  persons  subject  to  its 
laws  to  enter  into  contracts  without 
reference  to  and  not  in  accordance 
either  with  its  own  laws  or  with  the 
laws  of  the  country  where  the  con- 
tract is  to  be  performed.  A  limita- 
tion in  the  laws  of  all  nations  of  the 
right  to  enter  into  contracts  to  be 
performed  in  other  countries,  re- 
quires that  they  shall  be  in  accord- 
ance with  the  laws  of  the  country 
where  they  are  made,  or  else  in  ac- 
cordance with  the  laws  of  the  coun- 
try where  they  are  to  be  performed. 
The  laws  of  a  country  have  no  extra- 
territorial force,  and  do  not  prohibit 
persons  from  doing  any  act  or  mak- 
ing any  contract  in  another  country. 
The  coiu-ts  of  any  countiy  may  re- 
fuse to  enforce  contracts  made  in  an- 
other country  where  they  are  im- 
moral or  unjust,  or  where  the  en- 
forcing of  them  would  injure  the 
rights,  interests  or  convenience  of 
that  country  or  its  citizens;  but  the 
laws  of  a  countiy,  as  svich,  have  no 
operation  or  effect  upon  acts  done  or 
contracts  made  beyond  its  temtorial 
limits.  The  rights  enforced  by 
courts  where  contracts  are  made  in 
one  country  to  be  performed  in  an- 


THE   LAW   OF    WHAT   PLACE   AXD   TDIE    GOTEKNS. 


657 


B}^  the  interest  laws  of  many  of  the  states,  usurious  contracts 
are  not  wholly  void.  In  such  states,  where  there  is  any  interest 
hniit,  there  are  various  provisions  under  w^hich  the  debtor  may 
defend  on  the  ground  of   usury,  either  against  the  excess  of 


other,  are  those  given  by  the  law  of 
the  country  where  the  contract  was 
made,  and  such  rights  are  to  be  en- 
forced in  the  country  where  the 
contract  is  to  be  performed,  not  as 
a  matter  of  right,  but  as  a  matter  of 
comity  extended  towards  the  coun- 
try where  the  contract  was  made. 
Persons  making  contracts  witli  ref- 
erence to  the  laws  of  the  country 
where  such  contracts  are  to  be 
performed,  may  expressly  or  im- 
pliedly stipulate  for  the  rights  and 
benefits  given  by  the  laws  of  that 
country,  as  part  of  the  contract;  and 
the  laws  of  the  country  where  the 
contract  is  made  secures  to  the  parties 
the  rights  and  benefits  thus  agreed 
upon,  in  the  same  manner  as  if  the 
laws  in  reference  to  which  they  con- 
tracted were  incoi-porated  into  the 
contract. 

"In  determining  the  consequences 
attendant  upon  making  a  contract 
in  one  country,  to  be  performed  in 
another,  which  is  not  in  accordance 
witli  the  laws  of  either  country,  we 
should  inquire  which  country's  laws 
have  been  violated.  As,  for  example, 
the  laws  of  Illinois  allow  parties  to 
contract  for  interest  at  the  rate  of 
ten  per  cent. ,  while  the  laws  of  New 
York  allow  only  seven  per  cent. 
Persons  who  make  contracts  in  Illi- 
nois for  interest  at  the  rate  allowed 
by  its  laws,  violate  no  law  of  the 
state  of  New  York,  and  are  not  sub- 
ject to  the  penalties  imposed  by  tlie 
laws  of  that  state  upon  persons  who 
enter  into  contracts  within  its  terri- 
torial limits  in  violation  of  such 
laws.  A  creditor  who  has  made  no 
contract  in  New  York,  does  not  vio- 
VOL.  1  —  42 


late  its  laws  by  receiving  money 
from  his  debtor  in  that  state,  or 
undertaking  in  another  state  to  re- 
ceive it  there.  The  laws  of  Indiana 
allow  persons  to  contract  for  interest 
at  the  rate  of  six  per  cent,  in  case 
the  contract  is  to  be  performed  in 
that  state,  and  at  the  rate  of  seven 
per  cent,  if  the  contract  is  to  be  per- 
formed in  New  York,  but  prohibit 
contracting  for  a  greater  rate  in 
either  case.  Persons  entering  into 
contracts  in  Indiana,  reserving  a 
greater  rate  of  interest  than  is 
allowed  by  its  laws  in  such  cases, 
thereby  violate  the  laws  of  that  state, 
and  incur  the  penalties  imposed 
for  such  violation.  The  courts  of 
neither  state  will  enforce  the  con- 
tract, because  the  rights  asserted 
under  it  are  in  violation  of  the  laws 
of  the  state  where  it  was  made.  The 
fate  of  such  a  contract  depends  upon 
the  laws  of  the  j)lace  where  it  was 
made,  being  subject  to  the  legal 
consequences  attendant  upon  the 
violation  of  those  laws.  Andrews 
V.  Pond,  13  Pet.  65.  In  McAUister 
V.  Smith,  17  111,  328,  this  court  held 
that  pleas  setting  forth  that  the  bills 
of  excliange  ui^on  which  the  suit 
was  brought  were  made  in  Illinois 
and  payable  in  the  state  of  New 
York,  under  a  contract  not  in  accord- 
ance with  the  laws  of  either  state, 
ought  not  to  have  been  stricken  from 
the  files  for  immateriality.  "While 
the  reversal  of  the  judgment  in  the 
court  below  u^ion  that  ground  was 
undoubtedly  correct,  upon  a  careful 
review  of  the  subject  we  are  not 
satisfied  with  all  the  reasons  given 
on  that  occasion." 


658  INTEREST. 

interest  above  tlie  legal  rate;  against  tlie  entire  interest;  or 
against  the  whole  interest  and  some  portion  of  the  principal. 
Some  question  has  arisen  how  far  the  courts  of  one  state,  in 
which  the  remedy  is  sought  on  such  contracts  made  in  another 
state,  will  enforce  such  statutes  as  laws  governing  the  contract.  It 
is  a  general  rule,  that  penal  laws  of  other  states  and  countries  are 
strictly  local ;  confined  in  their  operation  to  the  territory  of  the 
power  enacting  them,  and  affect  nothing  more  than  they  can 
reach.^  The  statute  of  Kew  York  limits  the  rate  of  interest  to 
seven  per  cent.,  and  declares  void  all  usurious  contracts  and 
securities.  Any  contract  governed  by  this  law,  and  which 
would  be  held  void  there,  would  be  held  void  every  where.^  The 
effect  of  this  statute  is  penal,  and  for  this  reason  the  courts 
hold  that  statutes  taking  away  the  forfeiture,  or  diminishing  it, 
may  be  made  to  apply  to  existing  contracts.* 

The  contract  in  such  cases  has  no  legal  inception;  the 
illegality  in  its  origin  prevents  its  coming  into  being,  the  law 
being  more  potent  than  the  will  of  the  parties.  "VYhen  money 
is  parted  witli  on  the  faith  of  such  an  agreement,  it  is  irrecover- 
able, forfeited ;  not  by  judicial  sentence ;  not  because  the  law 
prescribes  a  fine  graduated  to  the  sum  lent  at  usury ;  but  because 
the  law  is  passive,  and  wiU  not  aid  a  party  who  has  voluntarily 
risked  his  money  in  an  unlawful  venture.  The  recognition  by 
the  courts  of  other  states  of  this  innate  infirmity  of  the  con- 
tract, involving  a  forfeiture  of  everything  of  value  invested  in 
it,  though  that  be  a  penalty  for  making  a  forbidden  contract,  is 
not  deemed  the  enforcement  of  the  penal  laws  by  whose  effect 
such  contracts  are  ab  initio  void. 

The  same  principle,  applied  to  a  contract  which  by  the  lex 
loci  is  avoided  in  part,  would  require  the  same  abatement  of  the 
debt  when  sued  for  in  another  state. 

By  the  statute  of  Iowa,  the  creditor  is  entitled,  in  an  action 
for   a  usurious   debt,   to  recover  only  the  principal,  without 

iFoUiott  V.  Ogden,  1  H.  Bl.  135;  2  See  ante,  p.  631. 
Ogden  V.  Folliott,  3  T.  R.  733;  3  Curtis  v.  Leavitt,  15  N.  Y.  9,  229: 
Wolff  V.  Oxholm,  6  M.  &  S.  99;  The  Welch  v.  Wadsworth,  30  Conn.  149: 
Antelope,  10  Wheat.  123;  Scoville  v.  Parmelee  v.  Lawrence,  44  111,  405; 
Canfield,  14  John.  338;  Common-  Wood  v.  Kennedy,  19  Ired.  68;  Pol- 
wealth  V.  Green,  17  Mass.  515.  lock  v.  Glazier,  20  Ired.  263. 


THE    LAW   OF  WHAT   PLACE   KKD   TIME   GOVERNS.  659 

interest  or  costs ;  bu^  the  courts  of  that  state  are  directed  in 
such  action  to  give  judgment  for  ten  per  cent,  interest  to  the 
school  fund  of  the  county.  The  creditor  loses  the  interest,  but 
the  debtor  is  reheved  only  from  paying  the  excess  over  ten  per 
cent.  In  an  action  in  Illinois,  upon  a  contract  made  in  the 
former  state,  the  plaintiff  was  permitted  to  recover  only 
according  to  the  same  rule;  that  is,  the  principal  without 
interest.^  There,  of  course,  the  penalty  to  the  school  fund  was 
not  adjudged ;  nor  would  the  provision  in  regard  to  costs  be 
executed.  The  court  say:  "Here  unlawful  interest  was  con- 
tracted for,  and  the  interest  was  incorporated  with  the  principal, 
and  the  law  in  effect  says  that  the  interest  shall  be  expunged 
from  the  note,  and  it  shall  be  read  and  adjudged  the  same  as 
if  the  principal  sum  alone  had  been  expressed  in  dollars  and 
cents.  And  this  law,  entering  into  and  forming  part  of  the 
contract,  goes  with  it  wherever  it  goes.  It  is  admitted  that 
such  would  be  the  effect  of  this  law  if  it  had  declared  that  the 
plaintiff  should  have  judgment  for  nothing.  How  much  more 
so  in  common  sense,  when  it  allowed  him  to  take  judgment 
for  the  principal  sum  borrowed.  The  distinction  in  the  two 
cases  is  not  only  without  reason,  but  is  against  all  reason,  and 
aU  sound  law,  and  the  philosophy  of  the  law." 

The  statute  of  Massachusetts  fixes  the  rate  of  interest  at  six 
per  cent.  If  more  is  reserved,  the  contract  is  not  void,  but  the 
defendant  recovers  full  costs,  and  the  plaintiff  forfeits  three- 
fold the  amount  of  the  whole  interest  reserved,  and  shall  have 
judgment  for  the  balance  only,  which  shall  remain  due  after 
deducting  the  three-fold  amount.  In  an  action  in  Iowa  upon  a 
contract  claimed  to  be  usurious  under  the  laws  of  Massachu- 
setts, the  trial  court  instructed  the  jury  that,  "  this  court  ^viU 
not  enforce  the  penal  statutes  of  another  state  relating  to  usury, 
when  that  statute  does  not  make  the  contract  wholly  void ;  and, 
therefore,  the  statute  of  Massachusetts  is  not  to  be  considered 
by  the  jury."  This  was  held,  on  appeal,  to  be  erroneous,  and 
that  the  legal  effect  of  the  contract  could  not  be  different  in 
different  states ;  and  it  is  according  to  their  legal  effect  that  all 
courts  are  bound  to  enforce  them.^ 

1  Barnes  v.  Whitaker,  22  111.  606.  In  tliis  case,  Wright,  J.,  said:    "  If 

2  Arnold  v.  Potter,  22  Iowa,   194.      the  law  aflixed  a  penalty,  and  the 


GGO 


I2;TEKEST. 


It  is  obvious  that  where  the  lex  loci  provides  that  the  interest 
contract  shall  not  l)e  void,  but  provides  certain  consequences  of 
the  usury,  and,  among  them,  that  a  deduction  shall  be  made,  in 
any  action  brought  upon  the  contract,  from  the  amount  to  Avhich 
it  purports  to  entitle  the  creditor,  such  consequences  are  penal 
in  their  nature,  in  the  same  sense,  and  no  other,  as  the  law  which 
declares  the  whole  contract  void.     ISTeither  law  means,  in  an  ab- 


defendant  was  in  this  case  seeking 
to  collect  it;  or  if,  as  under  our  stat- 
ute, the  defendant  forfeited  a  cer- 
tain amount  to  the  school  or  other 
fund,  and  we  were  asked  to  declare 
the  same,  we  would  have  cases  to 
which  the  instruction  in  question 
would  apply.  Is  forfeiture  the 
same  as  penalty  in  this  connection  ? 
This  is  easily  answered.  If  the  law 
attaches  a  penalty,  as  the  conse- 
quence of  an  act,  it  may  be  sued  for 
and  recovered;  but  it  will  be  en- 
forced alone  in  the  state  declaring 
the  same.  If,  on  the  other  hand,  a 
person's  property  may  be  forfeited 
or  lost  by  some  fault  or  offense,  the 
forfeiture  is  not  enforced,  except  in 
the  prosecution  of  the  fault  or  of- 
fense; and  if  the  party  guilty  of  the 
fault  seeks  to  enforce  the  contract 
which  he  has  obtained  as  the  fruit 
of  such  of^nse.  he  can  take  no  part 
of  the  forfeiture.  And  when  he  de- 
clares and  seeks  to  recover  upon 
such  a  contract,  in  another  state, 
if  the  courts  of  that  state  hold  that 
his  contract  shall  be  carried  out 
as  interpreted  by  the  laws  of  the 
state  where  made,  they  inflict  upon 
him  no  penalty;  they  are  not  en- 
forcing the  j)enal  laws  of  another 
state,  but  enforcing  the  statute  of 
a  sister  state  so  far  as  it  effects  a 
discharge  of  the  claim.  Gambling 
is  punished  by  our  statute,  and  a 
gambling  contract  is  void.  Suppose 
our  laws  declared  that  a  party  hold- 
ing such  a  contract  might  recover 
one-half  and  no  more.      Now,   the 


penalty,  the  penal  statute,  would 
not  be  enforced  in  another  state, 
but,  in  an  action  upon  the  contract 
there,  the  holder  would  be  limited 
in  his  recovery  to  the  one-half.  The 
Massachusetts  statute  not  only  uses 
the  Avord  'forfeit,'  but  says  the 
plaintiff  shall  only  have  judgment 
for  so  much;  thus  unmistakably 
keeping  up  the  distinction  between 
a  law  of  this  kind  and  one  penal  in 
its  nature.  But  take  other  illustra- 
tions. A  stockholder  fails  to  com- 
ply with  the  terms  of  the  articles  in 
the  payment  of  his  stock,  and  these 
articles  declare  that  for  such  non- 
compliance his  share  shall  become 
forfeited.  Will  any  one  pretend 
that  this  is  a  penalty  within  the 
meaning  of  the  law  ?  Then,  again, 
equity  recognizes  the  distinction 
when  it  is  said  that  a  party  will 
always  be  relieved  from  a  penalty, 
if  compensation  can  be  made,  be- 
cause it  is  deemed  as  a  mere  security; 
and  yet,  though  compensation  can 
be  made,  relief  will  not  always  be 
given  against  a.  forfeiture.  So,  again, 
we  speak  of  a  forfeiture  in  case  of 
a  breach  of  a  covenant,  but  never  of 
it  as  a  penalty.  So  a  penalty  is  con- 
tradistinguished from  liquidated 
damages,  but  never  of  forfeiture  in 
the  same  connection.  Then,  again, 
of  forfeiture  as  a  recompense  to  an 
injured  party  for  the  wrongful  or 
illegal  act  of  ant)ther,  by  which  the 
latter  loses  his  interest  in  the  thiug. 
But  penalty  carries  a  very  different 
idea.     It  is  the  punishment  inflicted 


THE  LAW  OF  WHAT  PLACE  AXD  TULE   GOVERNS. 


GGl 


solute  sense,  what  it  sajs  by  "  void,"  and  "  not  void."  If  a 
usurious  contract  were  absolutely  void,  anybody  could  allege  the 
invalidity.  But  the  law  confines  the  privilege  of  making  the  ob- 
jection to  the  debtor  party  to  the  contract,  and  those  standing  in 
certain  relations  of  privity  to  him.  The  law  which  declares  the 
contract  not  void,  itseK,  qualifies  the  declaration  by  specifying 
certain  effects  of  the  usury  which  substantially  obhtcrate  a  part 
of  the  contract  from  its  inception,^ 


for  not  executing  a  prior  obligation, 
the  object  being  to  insure  the  pri- 
mary engagements  of  covenant. 
Bouviers  Inst.  toI.  I,  292;  II,  146; 
IV,  217."  The  learned  judge,  refer- 
ring to  Sherman  v.  Gassett,  9  111. 
521,  maintaining  a  different  doc- 
trine, said:  "It  was  decided  by  a 
divided  court,  Lockwood,  J.,  deliv- 
ering the  opinion  of  six  of  the 
judges,  and  Kermer,  J. ,  the  dissent- 
ing opinion  of  the  other  three.  We 
do  not  propose  to  examine  it  at 
length.  Tlie  argument  of  the  ma- 
jority of  the  court  strikes  us  as  be- 
ing based  upon  improper  assiimp- 
tions,  and  as  equally  inconclusive  in 
its  reasoning;  and  most  pertinently 
does  the  dissenting  opinion  dispose 
of  the  -whole  argument  by  saying: 
*  To-  maintain  that  we  are  bound  to 
declare  a  usurious  contract  wholly 
void,  when  the  laws  of  the  place  of 
contract  make  it  so,  whereby  the 
creditor  is  deprived  of  the  whole  of 
his  claim,  but  that  we  are  not  bound 
to  regard  the  law  where  it  provides 
for  a  forfeitui-e  only  by  which  the 
creditor  loses  but  a  part  of  his  claim, 
seems  to  involve  a  singular  incon- 
sistency. It,  in  other  words,  in- 
volves the  following  remarkable 
syllogism:  The  law  everywhere 
avoids  usurious  contracts,  where 
they  are  declared  wholly  void  by 
the  law  of  the  place.  This  contract 
"was  void  in  part,  and  consequently 
it  is  good  in  whole.' " 


1  Willis  V.  Cameron,  12  Abb.  245, 
proceeds  wholly  vipon  the  ground 
that  the  statute  of  usuit  of  Massa- 
chusetts, which  applied  to  the  con- 
tract in  question,  is  penal,  and  there- 
fore that  the  deduction  of  three-fold 
the  amount  of  the  whole  interest  re- 
served, can  only  be  allowed  in  the 
courts  of  that  state. 

HUton,  J. :  "The  second  defense, 
although  very  ingeniously  pleaded, 
must,  I  think,  be  regarded  as  sham. 
It  assumes  to  be  a  defense  in  bar  of 
the  plaintiff's  right  to  recover  any- 
thing upon  the  note  in  suit;  — 
whereas,  by  the  statutes  of  Massar 
chusetts,  as  interpreted  by  the  courts 
of  that  state  (KendaU  v.  Robertson, 
12  Cush.  156),  although  the  rate  of 
interest  there  is  declared  to  be  six 
per  cent,  per  annum,  on  aU  con- 
tracts for  the  payment  of  money, 
yet  the  taking  of  a  gi'eater  sum  does 
not  avoid  the  entire  contract,  but 
merely  imposes  upon  the  person 
taking  it,  b}^  way  of  penalty,  a  for- 
feiture of  three-fold  the  amount  of 
interest  unlawfully  reserved,  and  no 
viore;  and  which  is  to  be  allowed  to 
the  defendant  in  the  action  upon  the 
contract,  when  he  establishes  the 
fact  of  taking  such  unlawful  rate, 
together  Avith  his  full  costs  in  the 
suit;  or  when  the  illegal  interest  has 
been  paid,  the  party  paying  it  may 
recover  it  back  three-fold.  (See  De- 
Wolf  V.  Johnson,  10  Wheat.  367,  as 
to  the  effect  of  such  a  statute.)    It 


662  ESTTEKESTi 

The  statute  which  makes  usury  a  total  or  partial  defense,  may 
hamper  it  by  maldng  it  depend  on  some  special  method  of  local 
practice,  and  thereby  confine  its  allowance  to  the  courts  of  the 
state,  by  whose  laws  the  contract  and  the  remedy  are  governed. 

This  is  illustrated  by  a  case  in  Massachusetts,  upon  a  note 
usurious  by  the  laws  of  ISTew  Hampshire,  by  which  law  the  ben- 
efit of  the  defense  depended  on  the  defendant,  offering  a  partic- 
ular mode  of  trial ;  that  is,  by  the  oath  of  the  parties.  If  the 
usury  was  thus  proved,  a  certain  amount  was  required  to  be  de- 
ducted, in  assessing  damages,  from  the  principal  and  interest  due 
on  the  contract.  These  provisions  were  held  to  apply  to  the 
remedy,  and,  of  course,  to  extend  only  to  suits  brought  in  iSTew 
Hampshire ;  that  they  could  have  no  effect  when  a  remedy  was 
sought  in  the  courts  of  another  state.^ 

The  law  of  what  place  governs  the  rate  on  damages. — 
Interest  before  a  debt  is  due  is  the  creature  of  agreement; 
afterwards  it  is  given  by  law  as  damages  for  detention  of  the 
debt ;  but  it  may  be  regulated  as  to  rate  by  contract.  In  the 
absence  of  contract  the  amount  is  regulated  by  law.     And  there 

will  not,  I  suppose,  be  contended  that  in  regard  to  remedies,  the  lex 
that  the  defendant,  if  he  had  paid  fori,  the  law  of  the  place  where  the 
the  illegal  interest,  could  maintain  remedy  is  sought,  must  govern.  We 
an  action  in  this  state  to  recover  the  therefore  cannot  be  governed  by  the 
penalty,  thus  imposed  by  the  statute  law  of  New  Hampshire,  which  pro- 
of Massachusetts  upon  the  party  re-  fesses  only  to  regulate  the  remedy 
ceiving  it;  and  this  being  the  case,  I  on  a  usurious  contract.  The  law  of 
think  it  must  follow,  as  a  necessary  Massachusetts,  though  somewhat 
consequence,  that  he  cannot,  in  this  analogous,  cannot  apply,  because, 
state,  avail  himself  of  the  statute,  by  although  the  mode  of  enforcing  the 
way  of  defense."  See  Sherman  v.  law  against  usury  is  by  applying  it 
Gassett,  9  111.  521.  to  the  remedy,  yet  the  law  to  be  en- 
1  Gale  V.  Eastman,  7  Met.  14.  The  forced  is  the  law  of  Massachusetts, 
distinction  between  the  law  of  the  The  law  of  this  commonwealth,  de- 
contract  and  tlie  remedy,  is  very  daring  what  shall  be  the  rate  of  in- 
distinctly stated  by  Shaw,  C.  J.,  who  terest,  and  what  contracts  shall  be 
delivered  the  opinion  of  the  court  in  deemed  usurious,  also  directs,  when 
this  case:  "  The  general  rule  is,  that  suits  are  brought,  what  deductions 
those  provisions  of  law  which  de-  shall  be  made;  but  it  is  suits  brought 
termine  the  construction,  operation  on  such  contracts;  that  is,  contracts 
and  effect  of  a  contract,  are  part  of  made  in  violation  of  its  own  pro- 
the  contract  and  follow  it,  and  give  visions." 
effect  to  it,  wherever  it  goes;  but 


THE   LAW   OF    WHAT   PLACE   A2JD   TBIE    GOVERNS. 


663 


is  much  authority  for  saying  that  the  law  which  governs  the 
rate  is  the  law  of  the  place  where  the  debt  is  pa3^able.^  That 
law  is  supposed  to  have  been  in  the  minds  of  the  parties  when 
the  debt  was  contracted ;  at  all  events,  the  money  is  deemed  to 
be  worth  the  legal  rate  of  interest  at  the  place  where  it  was  the 
debtor's  duty  to  pay  it.  The  creditor  may  bring  suit  wherever 
a  court  can  obtain  jm^isdiction,  but  the  damages  for  detention 
of  the  debt  have  generally  been  assessed  according  to  the  law 
of  the  place  where  payment  was  due,  if  that  law  is  shown.^ 
This  rule  does  not  appear  to  be  recognized  in  Massachusetts, 
except  in  respect  to  contracts  containing  an  express  or  implied 
agreement  to  pay  interest.  It  is  now  declared  settled,  that  in 
an  action  in  that  state  upon  a  note  made  payable  on  a  day  cer- 
tain in  another  state,  without  any  further  agreement,  express 
or  imphed,  to  pay  interest,  the  plaintiff  can  only  recover  at  the 
legal  rate  of  Massachusetts,  although  less  than  the  legal  rate  in 
the  state  where  the  note  was  made  and  payable.* 


iHealey  v.  German,  15  N.  J.  L. 
S28;  Evans  v.  Clarli;,  1  Port.  388; 
Evans  v.  Irvin,  id.  390;  Hall  v.  Kim- 
baU,  58  111.  58;  Hoppins  v.  Miller,  17 
N.  J.  L.  185;  Burton  v.  Anderson,  1 
Tex.  93;  Gibbs  v.  Fremont,  9  Exch. 
25;  Bushby  v.  Camac,  4  Wash.  C.  C. 
296;  Winthrop  v.  Carleton,  12  Mass. 
4;  Jaffray  v.  Dennis,  2  Wash.  C.  C. 
253;.  Lauvisse  v.  Barker,  3  Wheat. 
101;  Winthrop  v.  Pepoon,  1  Bay, 
468;  Gaillard  v.  Ball,  1  Nott.  &  McC. 
67;  Robinson  v.  Bland,  2  Burr.  1077; 
Thompson  v.  Ketchani,  4  Jolm.  285; 
Cocke  V.  Conigmaker,  1  A.  K.  Marsh, 
254;  Porter  v.  Munger,  22  Vt.  191; 
Crawford  v.  Simonton,  7  Port.  110; 
Evans  v.  White,  Hemj).  296. 

2  2  Par.  on  Con.  585;  2  Par.  on 
Notes  and  Bills,  370;  Fanning  v. 
Consequa,  17  John.  511;  Chambliss 
V.  Robertson,  23  Miss.  302. 

3Ayer  v.  Tilden,  15  Gray,  178; 
Ives  v.  Farmers'  Bank,  2  Allen,  236. 
In  Ayer  v.  Tilden  the  action  was 
upon  a  New  York  note  in  which 
ihere  was  no  agreement  for  the  pay- 


ment of  interest.  Hoar,  J.:  "  Tliat 
rate  is  six  per  cent,  from  the  ma- 
turity of  the  note.  The  interest  is 
not  a  sum  due  by  the  contract;  for 
by  the  contract  no  interest  was  pay- 
able, and  is  not,  therefore,  affected 
by  the  law  of  the  place  of  the  con- 
tract; it  is  given  as  damages  for  the 
breach  of  the  contract,  and  must 
follow  the  rule  in  force  within  the 
jurisdiction  where  the  judgment  is 
recovered,  Grinishaw  v.  Bender,  6 
Mass.  157;  Eaton  v.  Melius,  7  Gray, 
566;  Barringer  v.  King,  5  Gray,  9. 
The  contrary  mle  has  been  held  to 
be  api^licable  when  there  was  an 
express  or  implied  agreement  to  pay 
interest,  Winthrop  v.  Carleton,  13 
Mass.  4;  Von  Hemert  v.  Porter,  11 
Met.  210;  Lanussev.  Barker, 3  Wheat. 
101.  Perhaps  it  would  be  difficult 
to  supiwrt  the  decision  in  Winthrop 
V.  Carleton  upon  any  sound  i^rinci- 
jjle;  because  the  court  in  that  case 
held  that  interest  could  only  be  com- 
puted from  the  date  of  the  writi 
thus  clearly  showing  that  it  was  not 


664: 


INTEliEST. 


Allegation  and  pkoof  of  foreign  law. —  Courts  of  one  state 
do  not  take  judicial  notice  of  the  laws  of  other  states  and  coun- 
tries. Hence,  where  a  contract  is  sued  out  of  the  jurisdiction 
within  which  the  contract  was  to  be  performed,  and  the  plaintiff 
seeks  to  recover  the  interest  according-  to  the  law  of  the^ 
place  of  contract,  he  must  set  forth  that  law  in  his  plead- 
ing, and  prove  it  on  the  trial.  ^  Interest,  though  generally 
regulated  by  statute,  is  not  necessarily  so ;  it  may,  in  the  absence 
of  statute,  be  payable,  and  its  rate  governed  by  custom.* 
"Where  the  rate  of  another  state  is  alleged  to  be  established  by 
statute,  the  party  so  alleging  it  should  prove  such  statute,  as 
foreign  statutes  are  required  by  the  law  of  the  forum  to  be  proved. 
But  if  the  allegation  does  not  specify  that  the  foreign  rate 
is  established  by  statute,  the  court  would  not  assume  that  the 


considered  as  due  by  the  contract, 
and  yet  adopted  the  rate  of  interest 
allowed  at  the  place  of  the  contract. 
But  the  error  would  seem  to  be  in 
not  treating  money  paid  at  the  im- 
plied request  of  another  as  entitled 
to  draw  interest  from  the  time  of 
payment. 

"An  objection  to  adopting  the 
rule  of  the  rate  of  interest  in  the 
jurisdiction  where  the  action  is 
brought,  as  the  measure  of  dam- 
ages, may  be  worthy  of  notice;  that 
this  laile  would  allow  the  creditor  to 
wait  until  he  could  find  his  debtor 
or  his  property  within  a  jvirisdiction 
where  a  much  higher  rate  of  interest 
was  allowed  than  at  the  place  of 
contract.  But  the  debtor  could  al- 
ways avoid  this  danger  by  perform- 
ing his  contract;  and  the  same  diffi- 
culty exists  in  relation  to  the  action 
of  trover  and  replevin.  If  such  a 
case  should  arise,  it  might  with 
more  reason  be  argued  that  the 
damages  should  not  be  allowed  to 
exceed  those  which  would  have 
been  recovered  in  the  state  where 
the  contract  was  made  and  to  be 
performed."  See  also  Chase  v.  Dow, 
47  N.  H.  405. 


1  Ramsey  v.  McCauley,  2  Tex.  189 
Swett  V.  Dodge,  4  Sm.  &  M.   667 
Davidson  v.  Gohagiu,  3  Bibb,  634 
Richardson  v.  Williams,  3  Port.  239 
Jaffray  v.   Dennis,   3  Wash.   C.   C. 
253;  Peacock  v.  Banks,  Minor  (Ala.),. 
387;  Hunt  v.  Mayfield,  2  Stew.  124 
Harrison  v.   Harrison,  20  Ala.  629 
Nalle  V.  Ventress,  19  La.  Ann.  373 
Ingraham  v.  Arnold,  1  J.  J.  Marsh 
406;  Johnson  v.  Williams,  id.  489 
Russell    V.    Shepherd,    Hardin,   44 
Pawling  V.  Sartain,  4  J.  J.  Marsh, 
238;  Cavender  v.  Guild,  4  Cal.  250 
Thompson  v.  Monrow,  2  Cal.  99.    In 
Foden  v.  Sharp,  4  John.  183,  action 
was  brought  against  the  acceptors 
of  a  bill  of    exchange  drawn  and 
payable  in  England.     On  the  inquest 
of  damages,  the  only  evidence  was 
the    bill    and    a    protest    for    non- 
payment.    The  jury  allowed  seven 
per  cent,  interest,  the  rate  of  New 
York,  where  the  action  was  brought^ 
The  court  ordered  a  reduction  of  the 
interest  to  five  per  cent.,  the  rat& 
of    England,    of    which    the    court 
seemed  to  take  judicial  notice. 

2  Young   V.   Godbe,    15    Wallace, 
562. 


THE   LAW    OF   WHAT    PLACE   AND   TIME    GOVERNS. 


0G5 


foreign  rate  was  governed  by  a  written  law.  It  would  seem  to 
be  as  competent  to  take  judicial  notice  of  the  statutory  rate  of 
another  state  as  that  the  rate  of  another  state  is  fixed  by 
statute.  The  rate  of  another  state,  and  the  law,  written  or  un- 
written, which  is  the  foundation  of  it,  is  matter  of  fact  to  be 
alleged,  proved,  and  found  by  the  jury,^ 

Where  there  is  an  allegation  of  a  foreign  rate  of  interest  of 
the  place  of  contract,  differing  from  the  rate  at  the  place  where 
the  action  is  brought,  unsupported  by  proof ;  or,  in  the  abse  ce 
of  any  allegation  of  the  rate  where  the  contract  is  payable, 
Avhether  interest  should  be  denied  altogether,  or  should  be  al- 
lowed according  the  rate  allowed  by  the  law  of  the  forum,  does 
not  appear  to  be  enth^ely  settled. 


*  See  cases  cited  on  p.  G64.  In 
Kermott  v.  Ayr,  11  Mich.  181,  suit 
was  brouglit  on  a  Canada  note.  The 
court  held  that  the  court  tjould  not 
take  judicial  notice  of  the  rate  of 
Canadian  interest;  and  it  also  held 
that  it  was  not  a  presumption  of  law 
that  the  rate  of  interest  in  a  foreign 
country  is  the  same  as  that  estab- 
lished in  Michigan  by  statute. 
Campbell,  J.,  said:  "The  evidence 
of  the  attorney  from  Canada  con- 
cerning the  Canadian  law  of  inter- 
est could  not  properly  be  received  to 
show  the  terms  of  a  Canadian 
statute.  Foreign  statutes  cannot  be 
pi'oved  by  parol,  without  some 
showing  why  secondary  evidence 
becomes  necessary.  This  doctrine 
has  been  recognized  in  this  court  in 
People  v.  Lambert,  5  Mich.  349,  and 
is  the  settled  American  doctrine.  1 
Greenlf.  §§  587-8. 

"  The  rate  of  interest  is  a  matter 
of  such  common  notoriety  that  there 
might  be  reason  for  exceptiug  it 
from  this  general  rule,  and  there  is 
no  doubt  that,  in  many  cases,  it  has 
been  proved  by  parol,  without  ob- 
jection. But  there  would  be  danger 
in  allowing  such  an  exception  as  an 
arbitrary  one;  and  the  mistakes 
made  in  works  current  among  busi- 


ness men  on  the  rates  of  interest  in 
different  states  show  that  business 
knowledge  of  statutory  provisions  is 
not  always  reliable.  We  h&ve  been 
in  some  doubt  whether,  for  this  rea- 
son, there  was  not  error  in  admitting 
the  evidence  objected  to.  But  it 
does  not  appear  that  Canadian  inter- 
est is  regulated  by  statute;  and  we 
are  not  justified  in  making  any  in- 
ference not  required  by  far-ts  set  out, 
in  order  to  establish  eiTor;  the  pre- 
sumption must  always  be  in  favor  of 
the  judgment.  It  is  therefore  af- 
firmed." But,  in  Talbott  v.  Peoples, 
6  J.  J.  Marsh.  200,  on  a  similar 
record,  the  court  thus  treated  the 
subject.  The  only  witness  who  was 
sworn  to  prove  the  rate  of  interest 
in  Illinois,  stated  that  the  legal  rate 
was  six  per  cent.  Consequently,  if 
he  proved  anything,  he  iiroved  that 
the  rate  of  interest  in  Illinois  was 
fixed  b}^  law.  Tlie  law  must  neces- 
sarily be  a  public  and  written  law; 
for  if  it  be  not  a  positive  statute, 
enacted  by  the  legislature  of  Illinois, 
it  must  be  some  pre-existing  statute 
of  England  or  Virginia,  recognized 
by  the  constitution  of  Illinois,  or 
must  be  an  express  provision  of  her 
constitution. 


6GG  INTEREST. 

In  Texas  it  would  appear  to  be  settled  that  no  interest  at  all 
can  be  recovered  upon  a  contract  payable  in  another  jurisdic- 
tion, unless  the  rate  there  prevailing  is  alleged  and  proved.^  So 
in  Alabama.^  The  more  general  rule,  and,  as  we  think,  the 
more  reasonable  one,  is,  in  such  case,  to  allow  interest  according 
to  the  lex  fori?  The  law  of  the  forum  is  adopted  in  some 
states,  in  the  absence  of  proof  of  the  rate  at  the  place  of  con- 
tract, on  the  principle  that  it  should  be  presumed,  until  the 
contrary  is  shown,  that  the  law  of  another  state  where  the 
contract  was  to  be  performed  is  the  same  as  that  where  the  ac- 
tion is  brought.* 

Effect  of  changes  in  the  law  of  the  place  of  contract. — 
One  branch  of  the  present  inquiry  remains  to  be  considered ; 
that  is,  what  is  the  eifcct  of  changes  in  the  law  in  regard  to 
the  rate  of  interest  while  the  contract  on  which  the  question  of 
interest  arises  is  pending,  or  after  the  principal  becomes  due. 

At  first  blush,  the  principle  which  fixes  the  rate  by  the  law 
of  the  place  of  contract,  might  seem  to  require  the  rate  to  be 
the  same  throughout  the  period  of  forbearance  or  default  as  at 
the  makmg  of  the  contract,  or  when  the  contract  duty  or  lia- 
bility to  pay  interest  attaches.  It  is  so  when  interest  is  ex- 
pressly or  tacitly  agreed  to  be  paid.  But  where  the  interest  is 
recoverable  for  mere  default  in  not  paying  money  due  either 
ex  contractu  or  ex  delicto,  it  is  governed  by  the  interest  law  in 
force  when  the  interest  accrues ;  the  rate  will  change  to  con- 
form to  the  law,  if  any  change  takes  place. 

iWlieelerv.  Pope,  5Tex.  262;  Able  Hall  v.  Woodson,  13  Mo.  462;  Hall 

V.  McMurray,  10  id.  350;  Prigdon  v.  v.    Kimball,    58    111.    58;    Booty  v. 

McLean,    12    id.    420;     Ingram     v.  Cooper,    18  La.  Ann.  565;    Leaven- 

Drinkard,  14  id.  351.     See  Cooke  v.  worth    v.    Brockway,    2    Hill,    201; 

Crawford,  1  id.  9;  Burton  v.  Ander-  Thomas  v.  Beckman,  1  B.   Mon.  34. 

son,  id.  93.  See  Gordon  v.  Plielps.  7  J.  J.  Marsh. 

2Evansv.  Clark,  1  Port.  388;  Pea-  619;    Whidden    v.    Seelye,    40    Me. 

cock    V.    Banks,  Minor  (Ala.),    387;  247. 
Spain  V.  Grove,  id.  177.  ^  Desnoyer  v.  McDonald,  4  Minn. 

sSurlott  V.  Pratt,  3  A.  K.  Marsh.  515;  Fouke  v.  Fleming,  13  Md.  898; 

174;  Chumasero  v.  Gilbert,  26  111.  39;  Martin  v.  Martin,  1  Sm.  &  M.  176. 

24    id.    651;    Deem    v.    Crume,    46  See  Brown  v.  Gracey,  Dow.  &  R.  N. 

lU.  69;    Goddard  v.  Foster,  17  Wall.  P.  41;  De  La  Cliaunette  v.  Bank  of 

123;    Prince    v.    Lamb,    1   111.    378;  England,  9  B.  &  C.  208;  Kermott  v. 

Lougee  v.  Washburn,  16  N.  H.  134;  Ayer,  11  Mich.  181. 


THE   LAW   OF   WHAT    PLACE   AND   TlilE    GOVEENS.  6G7 

In  a  California  case,  decided  in  1859,  suit  was  brought  against 
an  administrator  for  the  balance  of  an  account  due  from  his  in- 
testate. It  did  not  appear  when  the  account  was  made.  The 
account  had  been  presented  to  the  defendant,  who  rejected  it. 
The  case  was  tried  without  a  jury.  The  account  was  found  to 
be  correct  by  the  trial  court,  and  interest  allowed  on  the  bal- 
ance for  a  certain  time  at  the  Mexican  rate,  which  prevailed 
until  an  interest  statute  was  adopted  increasing  the  rate,  and 
from  the  time  that  statute  took  effect  at  the  rate  fixed  by  that 
statute.  This  was  held,  on  appeal,  to  be  en^oneous.  Baldwin, 
J.,  announces  this  general  principle ;  that  the  interest  is  gov- 
erned by  the  law  in  force  at  the  time  and  place  of  contracting.^ 
Later  cases  in  that  state  recognize  the  distinction  above  stated. 
In  the  absence  of  a  contract  to  pay  interest,  it  is  only  allowed 
as  damages  for  failure  to  pay  the  money  due ;  and  it  is  compe- 
tent for  the  legislature  to  fix  the  amount  which  shall  be  recov- 
ered.2  Interest  for  money  lent  may  be  recovered,  though  the 
loan  was  made  when  the  law  was  otherwise.*  This  point  was 
decided  in  'New  York  in  1839,  in  a  case  which  presented  the 
question  in  this  form.  After  the  debt  in  question  became  due, 
and  while  interest  as  damages  was  accruing,  the  legislature 
passed  a  general  interest  law,  which  provided,  that  "  for  the 
purpose  of  calculating  interest,  a  month  shall  be  considered  the 
twelfth  part  of  a  year,  and  as  consisting  of  thirty  days ;  and 
interest  for  any  number  of  days  less  than  a  month  shall  be  esti- 
mated by  the  proportion  which  such  number  of  days  shall  bear 
to  thirty."  The  assistant  vice  chancellor  said:  "I  am  of 
opinion  that  when  an  account  is  stated  after  this  provision  went 
into  effect,  including  items  arising  before,  the  interest  must  be 
computed  in  the  manner  therein  dk*ected,  upon  the  prior  as  well 
as  the  subsequent  items,  from  the  passage  of  the  act.  The 
terms  of  the  section  are  sufficiently  comprehensive  for  this. 
They  are  for  the  purpose  of  calculating  interest,  etc.  The  only 
objection  is  whether  an  unlawful  retrospective  effect  is  given  to 
the  statute.     To  put  the  point  more  clearly :     If  a  promissory 

lAgiiirre  v.    Packard,  Adm'r,  14         SDihvorth  v.  Sindeiiiug,  1   Einn. 
Cal.  171.  488. 

2  White    V.    Lyons,    43    Cal.    279; 
Randolph  v.  Bayne,  44  Cal.  366. 


668  INTEREST. 

note  was  dated  before  the  1st  of  Jannar}^,  1830  (when  that  act 
was  passed),  and  was  sued  for  afterwards,  the  interest  should  be 
computed  at  3G5  days  to  a  year,  for  the  time  down  to  that 
date,  and  3 GO  days  subsequently.  The  statute  in  question  does 
in  effect  raise  the  rate  of  interest.  Suppose  it  did  so  in  terms, 
changing  it  to  eight  per  cent.,  and  then  a  prior  demand  is  sued 
upon.  ISTow,  where  interest  is  not  specified  in  a  contract,  as  a 
part  of  it,  it  is  allowed  as  damages  for  the  refusal  to  pay  the 
debt.  The  rate  of  interest  is  undoubtedly  subject  to  the  exist- 
ing law,  during  the  continuance  of  that  law.  But  is  there  any 
implied  contract  betAveen  the  parties,  restricting  the  interest  to 
such  rate  ?  A  fresh  demand  of  the  debt,  and  a  refusal,  is  a  new 
assertion  of  a  right,  and  imposes  a  new  liability  upon  the  party ; 
so  does  a  neglect  without  a  new  demand.  The  damages  are 
imposed  for  this  renewed  violation  of  a  contract.  I  do  not  per- 
ceive that  in  this  the  great  principle  of  treating  statutes  as 
prospective  only  in  their  operation,  is  infringed.  The  new  law 
takes  effect  upon  a  new  violation  of  an  obhgation.  It  has  no 
retrospective  effect  upon  previous  rights.  The  previous  right 
was  to  discharge  the  debt  with  interest  at  a  given  rate.  That 
right  has  not  been  asserted.  By  the  general  rule  of  law,  if 
there  was  no  statute  regulating  interest,  damages  of  an  uncer- 
tain amount  would  be  recoverable  for  the  detention  of  money, 
as  for  that  of  any  other  property.  The  statute  then  prescribes, 
that  for  the  continued  refusal  or  neglect  to  discharge  the  debt, 
those  damages  shall  be  at  another  rate  of  interest.^ 

1  Bullock  V.  Boyd,  1  Hoff.  Cli.  294.  mortgage,  made  before  the  statute. 
The  assistant  vice  chancellor  con-  had  been  paid  at  the  rate  of  eight 
tinues  the  discussion  upon  authority,  per  cent.,  so  much  of  the  extra  two 
He  says:  "There  are  some  English  percent,  as  accrued  after  the  act  of 
cases  which  bear  upon  this  question.  1660  should  be  applied  in  reducing 
By  the  terms  of  the  act  (3  Charles,  the  principal.  The  mortgagee  had 
2),  no  person  from  and  after  the  29th  entered  in  1675.  Lord  Chancellor 
of  September,  1600,  upon  any  con-  Jeffries  decided  that  the  statute  had 
tract,  shall,  from  and  after  the  said  reference  only  to  subsequent  con- 
29th  of  September,  take,  etc.,  more  tracts,  and  would  give  no  relief;  but 
than  at  the  rate  of  six  per  cent,  he  gave  mterest  at  six  per  cent,  c.nly 
The  interest  under  the  previous  act  from  the  entry  in  1673.  On  a  re- 
was  eight  per  cent.  In  the  case  of  hearing,  he  adhered  to  his  opinion. 
Walker  v.  Penny,  the  point  was  See  1  Vernon,  42  and  78.  Mr.  Ord 
whether,    where    interest    upon    a  cites  this  case  as  settling  that  tiie 


THE   LAW   OF   WHAT   PLACE   AND   TIME    GOYEKNS. 


6G9 


There  is  a  distinction  made  in  respect  to  the  nature  of  the 
obhgation  to  pay  interest  subsequent  to  maturity,  between  cases 
where  there  is  an  express  or  tacit  agreement  to  pay  interest  be- 
fore maturity  of  the  principal  debt,  and  cases  in  which  there  is 
no  interest  agreement  whatever.    It  is  true  that  some  com-ts  hold 


statute  had  no  effect  upon  prior  con- 
tracts (On  Usury,  p.  40);  and  Mr. 
Comyn  treats  the  question  as  un- 
decided. The  latter  writer  notices, 
however,  the  subsequent  reversal  of 
the  decree  upon  a  bill  of  review. 
See  1  Vernon,  145.  Both  writers 
have  omitted  to  state  that  the  case 
was  first  determined  by  Lord  Not- 
tingham, ujion  a  bill  of  foreclosure, 
who  held  that  the  extra  two  per 
cent,  should  go  tovrards  reducing  the 
principal.  Tlien,  u^jon  a  bill  to  re- 
deem, Lord  Jeffries  determined  as 
before  stated.  Upon  the  bill  of  re- 
view, Lord  Commissioner  Trevor 
Baid:  'Being  there  was  a  decree 
already  made,  he  would  not  reverse; ' 
but  Lord  Rawlinson  and  Ilutchins 
held  that  the  act  had  a  retrospect, 
and  makes  it  unlawful  to  take  more 
than  six  per  cent,  upon  any  contract, 
whether  made  before  or  after  the  act 
of  parliament.  The  note  of  tlie 
decree  in  Mr.  Raithby's  edition 
plainly  shows  that  they  meant  six 
per  cent,  after  the  new  statute  of 
1660. 

"  Thus,  so  far  as  this  case  goes, 
we  liave  the  authority  of  Lord  Not- 
tingham and  Commissioners  Rawlin- 
son and  Hutchins  against  the  opinion 
of  Lord  Jeffries. 

"But  there  is  also  the  express 
authority  of  Sir  Matthew  Hale  to 
the  same  effect.  Hedworth  v.  Pri- 
mate, Hardress,  318.  By  Hale,  chief 
baron:  'Since  the  new  act  which 
reduces  interest  to  six  per  cent., 
more  shall  not  be  allowed  upon  any 
contract,  though  made  before  the 
statute,  by  reason  of  the  words  of 


the  statute,  which  are,'  etc.  He 
then  notices  the  difference  in  the 
language  of  the  act,  and  that  of  the 
21  Jac.  1,  cap.  27. 

"His  observations  reconcile  also 
the  position  in  1  Eq.  Ca.  Ab.  288, 
pi.  1,  and  in  Hawkins'  Pleas  of  the 
Crown,  82,  §  10,  that  uuder  the 
statute  of  usury  (12  Anne,  c.  16), 
there  was  no  retrospect  to  any  debt 
contracted  before  its  passage.  The 
language  is  express,  limiting  its 
operations  to  contracts  made  after 
the  29th  of  September,  1714. 

'  There  is  another  case  (Proctor  v. 
Cooper,  Prec.  in  Ch.  116),  in  which 
the  master  of  the  rolls  held  upon  a 
bill  to  redeem  a  mortgage  made 
before  1660,  that  interest  should  be 
allowed  at  eight  per  cent,  to  the 
time  of  the  i^assage  of  the  act.  See 
Badley  v.  Bellamy,  1  W.  Black.  267. 

"  The  case  of  Fowler  v.  Chatterton 
(6  Bing.  258)  is  also  of  weight  upon 
this  question.  By  an  act  of  9  George 
IV,  c.  14,  called  Lord  Tenterden's 
act,  passed  May  9,  1828,  it  is  pro- 
vided that  in  actions  of  debt,  or  in 
cases  grounded  on  any  simple  con- 
tract, no  acknowledgment  or  prom- 
ise by  words  only  should  be  sufficient 
evidence  of  a  new  or  continuing 
contra.ct,  whereby  to  take  any  case 
out  of  the  enactment  of  the  statutes 
of  limitations;  but  such  acknowledg- 
ment or  x^romise  must  be  made  or 
contained  by  or  in  some  writing 
signed  by  the  party  chargeable 
thereby.  The  act  also  contained  a 
provision  that  it  sliould  not  go  into 
effect  until  the  1st  of  Jauuarj-,  1829. 
The  action  was  assumpsit,  and  com- 


C70 


INTEREST. 


that  if  the  agreement  is  to  pay  the  debt,  with  interest  at  a  speci- 
fied rate  on  a  day  certain,  and  does  not  expressly  stipulate  the 
interest  afterwards,  the  interest  agreement  expu'es  at  the  day 
fixed  for  payment ;  and  the  interest  which  the  debtor  is  obliged 
to  pay,  while  he  detains  the  money  after  it  is  due,  is  only  inter- 
est computed  at  the  legal  rate  as  damages.^  In  these  courts,  on 
the  doctrine  that  the  interest  agreement  has  no  effect  after  ma- 


menced  in  Hilary  terra,  1829.  The 
debt  was  then  of  more  than  six 
years'  standing.  In  February,  1828, 
a  promise  was  made  by  parol,  to  pay, 
under  instruction  from  the  judge  to 
find  upon  that  point.  The  judge 
then  non-suited  the  plaintiff,  on  the 
ground  that  the  promise  should  have 
been  in  writing  under  the  statute. 
The  court  of  common  pleas  refused 
to  set  aside  the  non-suit.  Two  other 
cases  were  cited  in  the  judgment 
upon  the  same  statute  to  the  same 
effect.  One  of  them  was  before 
Lord  Tenterden,  where  the  action 
had  been  brought  before  the  statute 
went  into  effect,  though  not  tried 
until  afterwards. 

"  I  have  carefully  read  the  leading 
cases  in  the  courts  of  our  own  coun- 
try upon  the  subject  of  retrospective 
statutes,  especially  Dash  v.  Van 
Elleeck,  7  John.  477,  in  which  the 
strength  of  the  old  supreme  court  of 
our  state  was  fully  put  forth.  I  see 
nothing  in  the  principles  there  advo- 
cated, or  the  decision  there  made,  to 
change  the  result  I  have  arrived  at. 
Calder  v.  Bull,  3  Dall.  386;  Bedford 
V.  Shilling,  4  S.  &  R.  401;  Wood  v. 
Winnick,  3  N.  H.  473;  Hackley  v. 
Sprague,  10  Wend.  113;  Sayre  v. 
Wisner,  8  Wend.  66."  Stark  v.Olney, 
3  Oregon,  88;  Perrin  v.  Lyman,  32 
Tnd.  16;  Woodruff  v.  Scraggs,  27 
Ark.  26,  But  see  CoS:  v.  Marlott,  36 
N.  J.  L.  389.  In  this  case  the  court 
decided  that  the  rate  of  interest 
which  a  judgment  will  bear  immedi- 


ately after  its  rendition  cannot  be 
changed  by  subsequent  legislation. 
Scudder,  J.,  says:  "The  effect  of  a 
judgment  is  to  fix  the  rights  of  the 
parties  thereto  by  the  solemn  adjudi- 
cation of  a  court  having  jurisdiction. 
How  these  rights  can  be  affected  by 
subsequent  legislation  is  not  ap- 
parent. This  contract  of  the  highest 
authority  cannot  be  disturbed  so 
long  as  it  remains  unreversed  and 
unsatisfied.  Changing  the  rate  of 
interest  does  not  affect  existing  con- 
tracts or  debts  due  prior  to  such 
enactment,  whether  they  be  evi- 
denced by  statute,  judgment  or 
agreement  of  the  parties.  Such  has 
been  the  unifoiin  coiu'se  of  decision 
in  our  courts.  .  .  .  If  it  be  said 
that  the  interest  is  given  as  damages 
for  the  detention  of  the  debt,  and 
that  the  damages  are  greater  when 
seven  per  cent,  interest  can  be  had 
than  when  only  six  per  cent,  can  be 
obtained,  and  for  such  detention 
after  the  rate  is  increased,  there 
should  be  additional  damages  al- 
lowed, the  answer  is  that  there  can 
be  no  such  second  assessment  where 
the  amount  of  the  debt  or  liability 
has  been  once  adjudged,  and  the 
cause  of  action  remains  the  same. 

"The  interest  is  the  measure  of 
damages  for  the  detention,  and  that 
must  relate  to  the  time  when  the 
amount  is  fixed  by  the  entry  of  the 
judgment."  See  North  R.  M.  Co.  v. 
Christ  Church,  22  N.  J.  434. 

1  See  ante,  p.  549. 


THE    LAW    OF    WHAT   PLACE   AND    TIME    GOYEKNS.  671 

turity,  doubtless  tlie  interest  after  that  time  would  be  computed 
at  whatever  might  be  the  legal  rate,  changing  the  rate  in  the 
computation,  as  the  legal  rate  may  change.  The  rule,  however, 
as  we  have  before  stated,  is  more  generally  to  continue  the  rate 
agreed  on  before  maturity,  until  the  debt  is  paid  or  put  in  judg- 
ment.^ But  there  is  still  another  distinction :  —  courts  which 
concur  in  continuing  the  interest  rate,  if  agreed  on  for  the  period 
of  credit,  to  pajanent  or  judgment,  differ  in  their  reasoning  by 
which  they  reach  that  result ;  and  this  difference  will  naturally 
produce  a  divergence  on  the  point  we  are  now  discussing.  When 
the  agreement,  in  respect  to  the  rate  of  interest  before  maturity, 
is  construed  as  tacitly  continuing,  so  long  as  the  debt  remains  in 
contract  unpaid,  the  interest  after  maturity  rests  on  a  basis  of 
contract,  and  is  not  subject  to  be  reduced  or  altered  by  any  law 
subsequently  enacted.^  But  when  the  continuance  of  the  rate 
agreed  on  before  maturity  is  not  put  upon  the  ground  that  the 
agreement  continues  it,  but  upon  the  ground  that  the  rate  which 
was  agreed  to  before  maturity,  as  a  just  compensation  for  the 
use,  must  be  deemed  a  just  and  proper  compensation  afterwards 
for  the  detention  of  the  money,  then  the  rate  rests  not  upon  the 
contract,  and  is  not  so  fixed  as  to  be  beyond  the  effect  of  subse- 
quent legislation,  w^hich  is  plainly  intended  to  modify  it. 

This  distinction  is  illustrated  by  two  recent  cases  in  Connecti- 
cut. In  one  of  them,^  the  action  was  brought  upon  a  promis- 
sory note,  made  pa3^able  in  that  state,  for  a  specified  sum,  "with 
taxes,  and  interest  at  the  rate  of  fifteen  per  cent,  after  maturity," 
Here  the  contract  in  respect  to  interest  after  maturity  was  not  a 
tacit  but  an  express  contract.  The  difference  is  immaterial,  so 
far  as  the  effect  is  concerned.  A  tacit  agreement  is  as  inviola- 
ble as  an  express  contract.  IS'otes  which  provide  for  interest, 
generally,  and  are  construed  to  mean  interest  until  paid,  are 
equivalent  to  the  contract  made  in  the  case  just  mentioned. 
When  that  note  was  made,  the  law  of  Connecticut  permitted 
parties  to  contract  for  any  rate  of  interest.  But  before  the  note 
matured  an  act  was  passed  which  pro\4ded  that  no  greater  rate 

1  See  ante.  pp.  549,  550.  3  Hubbard  v.  Callahan,  43  Conn. 

2 Lee  V.  Da^is,  1  A.  K.  Marsh.  397;      524. 
Association,    etc.    v.    Eagleson,    60 
How.  Pr.  9. 


€72  rNTEEEST. 

of  interest  than  seven  per  cent,  should  be  recovered  for  money 
loaned,  "  for  the  time  after  the  money  loaned  becomes  due."  It 
was  held  that  the  fifteen  per  cent,  was  to  be  regarded  as  inter- 
est, recoverable  under  the  contract,  and  not  as  damages ;  that 
the  act  was  not  intended  to  apply  to  contracts  in  which  there 
was  an  airreement  as  to  the  rate  of  interest  after  maturitv,  and 
if  the  act  was  intended  to  apply  to  such  contracts  then  existing, 
it  was  so  far  unconstitutional  and  void,  as  impairing  the  obhga- 
tion  of  contracts. 

The  other  case^  was  an  action  upon  a  note  made  in  18G9,  and 
payable  in  Connecticut,  in  three  years,  with  interest  at  seven 
and  three-tenths  per  cent,  per  annum.  The  statute  in  force  when 
this  note  was  made,  provided  that  when  interest  was  reserved 
at  a  higher  rate  than  six  per  cent.,  the  contract  should  be  void, 
so  far  as  related  to  intei'cst.  In  1872,  an  act  was  passed  "vali- 
dating and  confirming  "  usurious  contracts,  and  providing  that 
they  might  be  enforced.  It  will  be  observed  that  this  note  con- 
tained a  promise  of  interest,  which  was  general  as  to  time,  and 
in  Connecticut  meant  from  date  to  maturity.  If  not  affected  by 
usury,  nor  changed  by  subsequent  legislation,  the  conventional 
rate  would  be  continued,  not  as  an  agreed  rate,  but  as  a  just 
rate,  being  considered  just  after  maturity,  because  the  parties 
had  adopted  it  during  the  period  of  credit.^  In  1873,  the 
validating  act  of  1872  was  repealed.  It  was  held  that  the  con- 
tract in  this  note  was  validated  by  the  act  of  1872,  and  the  re- 
peal of  it  could  not  annul  the  validating  effect.  The  note,  with 
the  agreed  interest  to  maturity,  was  recoverable ;  but  the  inter- 
est, afterwards,  at  the  conventional  rate,  not  being  secured  by 
the  contract,  was  unaffected  by  these  acts,  and  the  conventional 
rate  being  in  excess  of  the  legal  rate,  when  the  note  was  made, 
it  could  not  be  deemed  a  just  rate." 

It  results  from  this  brief  review  of  the  adjudications,  that 
whenever  interest  after  maturity  of  the  debt  is  not  fixed  by  an 
agreement  of  the  parties  binding  for  that  purpose,  by  the  law 
of  the  place  of  contract,  it  is  competent  for  the  legislature  of 

1  First  Ecclesiastical  Society  of  ^8ee  Simpson  v.  Hall,  47  Conn. 
Suffield  V.  Loomis,  42  Conn.  570.  417. 

2Beckwith    v.    Trustees,    etc.    29 
Conn.  268. 


THE   LAW   OF    WHAT   PLACE   AND   TIME   GOVERNS.  673 

that  jurisdiction  to  change  the  rate  to  be  computed  as  damages ; 
and  by  parity  of  reason  it  is  fair  to  conclude  also  that  a  statute 
enacted  in  another  jurisdiction  where  the  remedy  is  sought,  ap- 
plying the  law  of  the  forum  to  the  computation  of  such  interest 
as  damages,  would  be  valid. 

On  the  other  hand,  if  the  interest  after  maturity  is  fixed  by 
contract,  valid  for  that  purpose  by  the  law  of  the  place  of  con- 
tract, whether  it  be  by  a  promise  in  express  terms  of  interest 
after  maturity  at  a  specified  rate,  or  by  a  promise  of  interest  at 
a  specified  rate  generally,  it  is  as  sacred  and  secure  against  the 
impairing  effect  of  subsequent  legislation,  as  the  agreement 
before  maturity,  or  for  payment  of  the  principal  itself.' 

The  question  has  been  considerably  discussed  and  differently 
decided  b}^  different  courts,  whether  a  contract  for  the  pay- 
ment of  money  which  is  subject  to  be  avoided  either  wholly  or 
in  part  for  usury,  can  afterwards  be  validated  by  legislation  so 
as  to  deprive  the  debtor  entirely  of  that  defense.^  A  usurious 
contract,  although  declared  whoUy  or  in  part  void,  is  not  void 
in  an  absolute  sense;  it  is  only  voidable  at  the  election  of  the 
debtor.  When  he  elects  to  avail  himself  of  the  defense,  th© 
effect  of  the  law  in  discharging  any  part  of  the  obligation  to 
pay  the  principal  of  the  debt  and  lawful  interest,  is  penalty,, 
and  is  imposed  not  so  much  to  benefit  or  relieve  the  debtor  a« 
to  maintain  by  this  sanction  the  general  policy  of  the,  law  of 
restricting  interest  transactions  within  what  are  deemed  reason- 
able limits  for  the  general  Vv'elfare.  It  is  even  regarded  as  un- 
conscientious and  inequitable  for  him  to  claim  and  accept  such 
a  discharge.^  It  is,  at  aU  events,  purely  statutory,  and  is  not 
distinguishable  in  principle  from  penal  damages  given  in  cer- 
tain actions,  in  which  simple  or  actual  damages  are  allowed  to 
be  doubled  or  trebled. 

Although  the  usurious  contract  may  be  so  far  void,  if  the 
debtor  chooses  to  set  up  the  defense  of  usury,  that  the  creditor 
may  not  be  able  to  sustain  an  action  for  the  whole,  or  even  a 

iLeev.  Davis,  1  A.  K.  Marsh.  397;  Mass.    322;    Wood  v,   Kennedy,    19 

Association,    etc.    v.    Eagleson,    60  Ind.  68;    Perrin  v.  Lyman,  32  Ind. 

How.  Pr.  9.  16;  Morton  v.   Rutherfo^jl,  18  Wis. 

2  See  Mitchell  v.  Doggett,  1   Fla.  398. 

371;  Springfield  Bank  v.  Men-ick,  14  » Curtis  v.  Leavitt,  15  N.  Y.  9. 
Vol  — I  43 


GT-ir  IN'TEKEST. 

part  of  the  debt,  for  reasons  of  policy ;  yet  a  moral  obligation 
remaining  to  perform  the  contract,  it  would  be  going  very  far 
to  say  that  the  legislature  may  not,  in  furtherance  of  the  orig- 
inal intention  of  the  parties,  add  a  legal  sanction  to  that  obli- 
gation, when  those  reasons  have  ceased,  or  the  policy  is 
abandoned ;  ^  especially  as  the  repeal  of  a  penalty  provided  by 
law  would  have  this  effect,  and  thereby  establish  matters  in  the 
condition  in  which  it  was  the  intention  of  all  concerned  to  place 
them.- 

The  privilege  of  a  debtor  to  repudiate  his  contract  by  plead- 
ing usury ;  or  the  privilege,  by  making  an  unconscionable  de- 
fense, to  have  the  benefit  of  a  penalty  given  by  statute  for  a 
violation  of  law,  is  not  a  vested  riglit.^  Statutes  which  take 
away  the  defense  of  usury  in  respect  to  existing  contracts,  or 
having  the  same  effect  by  expressly  validating  and  confirming 
them,  are  generally,  and  by  a  decided  weight  of  authority, 
sustained.*  When  such  statutes  go  no  farther  than  to  bind  a 
party  by  a  contract  which  he  has  attempted  to  enter  into,  but 
which  was  invalid  by  reason  of  some  personal  inability  on  his 
part  to  make  it,  or  through  neglect  of  some  legal  formality,  or 
in  consequence  of  some  ingredient  in  the  contract  forbidden  by 
law,  the  question  which  they  suggest  is  one  of  policy,  and  not 
of  constitutional  power.^     The  legislature  has  power  to  impose 

iSee  Lewis  v.  McElvain,  16  Ohio,  *  Ibid;  Pattison  v.  Jenkins,  33  Ind. 
347;  Trustees  v.  McCaughy,  3  Ohio  87;  Andrews  v.  Russell,  7  Blackl. 
St.  155;  Johnson  V,  Bentley,  16  Ohio,  474;  Grimes  v.  Doe,  8  Blackf.  371: 
97;  Boyce  v,  Sinclair,  3  Bush,  304;  Thompson  v.  Morgan,  6  Minn.  293; 
Hess  V.  Werts,  4  S.  &  R.  361;  Syra-  Parmelee  v.  Lawrence,  48  111.  331; 
cuse  Bank  v.  Davis,  16  Barb.  188;  Curtis  v.  Leavitt.  17  Barb.  309: 
Bleakner  v.  Farmers',  etc.  Bank  of  Wood  v.  Kennedy,  19  Ind;  68;  Rath- 
Greencastle,  17  S.  &  R.  64;  Satterlee  bun  v.  Wheeler,  39  Ind.  601;  Wash- 
V.  Matteson,  10  S.  &  R.  191;  Menges  burn  v.  Franklin,  35  Barb.  599;  W^il- 
V.  Wertman,  1  Pa.  St.  218;  Wood-  son  v.  Hardesty,  1  Md.  Ch.  66;  Pol- 
ruff  V.  Scruggs,  37  Ark.  26;  Perrin  lock  v.  Glazier,  20  Ind.  363. 
V.  Lyman,  33  Ind.  16;  Gibson  v.  Hib-  ^Cooley's  Const.  Lim.  p.  374.  See 
bard,  13  Mich.  314;  Welch  v.  Wads-  Head  v.  Ward,  1  J.  J.  Marsh.  280; 
worth,  30  Conn.  149.  Outen  v.  Graves,  7  J.  J.  Marsh.  639: 

2  First    Ecclesiastical    Society    v.  Cox  v.  Marlott,  36  N.  J.  L.  389;  Pond 
Loomis,  42  Conn.  570.  v.  Home,  65  N.  C.  84;  Williams  v. 

3  Jenuess  v.  Cutler,  13  Kan.  500;  Smith,  id.  87. 

affirmed  in  Ayres  v.  Probasco,  14  It  was  held  in  Mucklar  v.  Cross, 
id.  175,  33  N.  J.  L.  433,  that  a  bond  made  in 


INTEREST   AS    AN   INCIDENT   TO   THE    TRINCIPAL.  675 

on  all  debtors  interest  from  the  date  of  the  enactment  for  delay 
in  the  payment  of  money  already  due.^ 

Section  7. 

INTEREST   AS   AN   INCIDENT  TO   THE   PRINCIPAL. 

Interest  due  by  agreement  a  debt  —  Interest  as  damages  strictly  accessory 

to  the  principal. 

Interest  due  by  agreement  a  debt. —  With  a  certain  pro- 
priety interest  may  be  said  always  to  be  an  incident  to  the 
principal ;  not  only  when  it  is  a  part  of  the  contract,  but  also 
when  it  is  allowed  as  damages.  In  the  former  case,  it  is,  how- 
ever, not  strictly  an  incident ;  or  rather,  it  is  more  than  an  in- 
cident. There  must  be  a  principal  sum ;  but  after  interest  has 
accrued,  it  is  no  longer  dependent  on  the  principal ;  it  does  not 
necessarily  follow  it.  Conventional  mterest  is  of  itself  a  delDt, 
and  payment  of  the  principal  alone  will  not  affect  the  right  to 
recover  the  interest ;  ^  and  yet  it  is  so  aUied  to  the  principal  that 
if  the  latter  is  recovered  without  recovery  of  the  interest  when 
not  secured  by  a  separate  instrument,  it  is  barred ;  not  because 
the  interest  cannot  exist  as  a  valid  demand  distinct  from  the 

1865,  when  the  legal  rate  of  interest  the  law  of  1849  was  in  force,  which 
was  six  per  cent.,  conditioned  for  only  allowed  six  per  cent,  to  be  con- 
the  payment  of  the  principal  sum  in  tracted  for,  and  forfeited  the  excess, 
five  years  after  date,  with  lawful  The  act  of  1857  repealed  all  the  pen- 
interest  for  the  same,  payable  an-  alties;  but  it  was  held  that  the  cred- 
nuallj',  at  such  rate  as  then  was,  or  itor  could  not,  as  a  mere  effect  of 
thereafter  might  be  fixed  upon  as  that  repeal,  recover  a  larger  rate 
the  legal  rate  of  interest  in  that  than  he  could  lawfully  have  con- 
state by  the  legislature,  will,  after  tracted  for.  Simpson  v.  Hall,  47 
the  passage  of  the  act  of  March  15,  Conn.  417. 

1866,  increasing  the  legal  rate  of  in-  '  Dunne  v.  Mastick,  50  Cal.  244. 
terest  to  seven  per  cent.,  caiTj  in-  2 "Watts  v.  Garcia,  40  Barb.  656: 
terest  at  such  increased  rate,  though  Howe  v.  Bradley,  19  Me.  31;  Can- 
that  act  in  terms  only  applies  to  field  v.  The  11th  School  Dist.  19 
contracts  made  after  its  passage;  the  Conn.  529;  Still  v.  Hull,  20  Wend, 
increased  rate  of  interest  being  pay-  51;  Stone  v.  Bennett,  8  Mo.  51.  See 
able,  not  by  virtue  of  the  statute,  Foster  v,  Harris.  10  Pa.  St.  45. 
but  by  force  of  the  agreement  of  Where  the  debt  only  was  seized  and 
the  parties.  condemned  by  the  enemy  in  war.  it 

In  Drake  v.  Latham,  50  111.  270,  was  held  that  the  interest  due  might 
suit  was  brought  on  a  ten  per  cent,  be  recovered  by  the  original  creditor, 
note.     This  note  was    made  while      3  Har.  &  McH.  124. 


676 


INTEKEST. 


principal;  but  because  demands  arising  upon  one  agreement 
for  principal  and  interest,  due  to  the  same  party  at  the  same 
time,  cannot  be  divided  and  each  made  the  subject  of  a  sepa- 
rate action.  In  that  respect  there  is  no  difference  between 
principal  and  interest ;  ^  an  action  brought  for  one  would  bar 


1  In  Doe  V.  Warren,  1  Greenlf.  48, 
suit  was  brought  on  a  promissory- 
note  payable  with  interest  annually. 
The  chief  justice  says:  "What  is 
interest  ?  It  is  an  accessory  or  inci- 
dent to  the  principal ;  the  accessoiy 
is  a  constantly  accruing  one.  The 
former  is  the  basis,  or  the  substance 
from  which  the  latter  arises,  and  on 
which  it  rests."  In  Howe  v.  Brad- 
ley, 19  Me.  31,  Shepley,  J.,  says: 
"The  holder,  in  such  cases,  may 
maintain  a  suit  to  recover  the  inter- 
est payable  before  the  principal,  but 
cannot  have  a  separate  action  for  it 
after  the  principal  becomes  due  and 
while  it  remains  unpaid,  because  he 
may  recover  it  in  an  action  for  the 
principal."  The  question  in  this 
case  was  whether  an  indorser  of  a 
note  on  which  interest  became  due 
before  the  principal  was  payable, 
was  entitled  to  the  same  notice  in 
respect  to  the  interest  as  in  respect 
to  the  principal,  in  order  to  be  held 
liable  for  it.  It  was  held  he  was 
not  —  that  if  on  the  note  becoming 
due  it  was  dishonored,  and  the  in- 
dorser then  duly  notified,  he  was 
fixed  not  only  for  the  principal  and 
interest  then  maturing,  but  also  for 
interest  which  was  payable  before 
and  not  paid. 

In  Chinn  v.  Hamilton,  Hemp.  C. 
C.  438,  the  court  say:  "  The  promise 
to  pay  the  debt,  and  the  promise  to 
pay  the  interest  from  the  date  of  the 
contract,  are  two  separate  and  dis- 
tinct promises  or  undertakings;  one 
may  be  performed  without  perform- 
ing the  other.  In  declaring  upon  a 
covenant,  or  a    parol    contract    in 


writing,  containing  various  under- 
takings, the  plaintiff  has  his  election 
to  complain  of  tlie  breach  of  one  or 
of  all  of  the  covenants  or  promises. 
If  he  complains  of  the  breach  or 
non-performance  of  one  only  of  the 
covenants  or  promises,  he  thereby 
admits  that  the  others  have  been 
performed. 

"  The  intendment  is  to  be  made 
most  strongly  against  the  pleader,  and 
as  he  complains  of  the  breach  of  only 
one  of  the  covenants  or  obligations, 
the  presumption  arises  that  the 
others  have  been  performed.  It  at 
all  events  waives  any  right  of  action 
upon  them;  for  having  sued  upon 
the  contract  once  he  is  forever 
barred  frcm  suing  again  [in  respect 
to  any  cause  that  existed  at  the  time 
of  that  suit  and  which  mi^ht  be  in- 
cluded in  itj.  It  will  not  be  allowed 
to  split  up  the  various  covenants  and 
promises  contained  in  one  contract 
and  sue  upon  each  of  them;  he  can 
have  but  one  recovery  upon  one  con- 
tract, which  then  becomes  merged  in 
the  judgment  of  the  court."  This  lan- 
guage must  be  understood  as  refer- 
ring to  the  facts  then  before  the 
court— to  a  contract  for  principal  and 
for  interest,  both  due.  The  language 
is  broad,  but  is  obviously  not  used  in 
so  general  a  sense  as  to  be  applicable 
to  a  contract  requiring  a  series  of 
acts  to  be  performed  at  different 
times.  A  suit  for  a  breach  in  re- 
spect to  the  first  woiild  not  necessa- 
rily involve  the  whole  contract,  and 
the  judgment  would  not  merge  it  so 
far  as  it  contained  other  executory 
provisions.     For  instance,  a  note  or 


INTEKEST   AS    AN   INCIDENT   TO   THE   PRINCrPAL. 


677 


both,  whether  included  in  the  claim  or  recovery  or  not.  But 
such  interest  made  payable  before  the  principal  is  due,  may  be 
sued  for  by  a  suit  for  that  alone,  if  brought  before  the  princi- 
pal becomes  due.^ 

Interest  as  damages  strictly  accessory  to  the  principal. — 
Interest  which  is  allowed  as  damages,  and  which  is  not  hqui- 
dated,  nor  covered  by  any  contract  to  pay  it,  is  strictly  inci- 
dental to  the  debt.  It  cannot  exist  after  the  debt  ceases  by 
payinent  or  otherwise.^ 

Interest  being  accessory  and  incidental  to  the  principal,  it  ad- 
heres to  and  f oUows  the  principal ;  ownership  of  the  fund  on 
which  the  interest  accrues  includes  the  interest. 

AYhere  attached  property  becomes  by  process  of  law  changed 
into  money  in  the  officer's  hands,  and  is  invested  by  him  so  as 
to  produce  interest,  such  interest  does  not  belong  to  the  officer, 
but  to  the  party  entitled  to  the  money.' 

A  specific  legacy  carries  interest  from  the  death  of  the  tes- 
tator ;   it  becomes  then  the  property  of  the  legatee.* 


other  instrament  may  provide  for 
instalments  of  i^rincipal  or  inter- 
est. Undoubtedly  successive  actions 
could  be  bi'ought  for  their  recovery. 
Yet  it  is  quite  as  clear  that  all  in- 
stalments of  either  interest  or  prin- 
cipal or  both,  due  at  the  time  of 
bringing  the  action,  must  be  declared 
for  in  one  action;  at  all  events  the 
judgment  will  be  a  bar  in  respect  to 
aU. 

ilbid;  Greenleaf  v.  Kellogg,  2 
Mass.  568;  Cooley  v.  Rose,  3  Mass. 
221;  Catlin  v.  Lyman,  16  Vt. 
44;  Hastings  v.  Wiswall,  8  Mass. 
455;  Estabrook  v.  Moulton,  9  Mass. 
258. 

2  Moore  v.  Fuller,  2  Jones  L.  205; 
Tillotson  V.  Preston,  3  John.  229; 
Burr  V.  Burch,  5  Cranch  C.  C.  506; 
Jacot  V.  Emmett,  11  Paige,  143;  Con- 
sequa  v.  Fanning,  3  John.  Ch.  587; 
Gillespie  v.  Mayor,  etc.  3  Edw.  513; 
Southern  Cent.  R.  R.  Co.  v.  Moravia, 
61  Barb.  180;  Potomac  Co.  v.  Union 


Bank,  3  Cranch  C.  C.  101;  Dixon  v, 
Parkes,  1  Esp.  110;  Fake  v.  Eddy's 
Ex'r,  15  Wend.  76;  Johnston  v. 
Brannan,  5  Jolin.  268;  Williams  v. 
Houghtaling,  5  Cow.  36;  People  v. 
County  of  N.  Y.  5  Cow.  331;  Stevens 
v.  Barringer,  13  Wend.  639;  Ameri- 
can Bible  Society  v.  WeUs,  68  Me. 
572. 

3  Richmond  v.  Collamer,  38  Vt.  68; 
Jackson  v.  Smith,  52  N.  H.  9;  Far- 
ley v.  Moore,  21  N.  H.  146;  Chase  y. 
Monroe,  30  N.  H.  427. 

*  See  Ingraham  v.  PosteU's  Ex'r,  1 
McCord  Ch.  94;  Hylyard's  Estate,  5 
W.  &  S.  30;  Angerstein  v.  Martin,  1 
Turn.  &  Russ.  232;  Hewett  v.  Mor- 
ris, 1  Turn.  &  Russ.  241;  Jones  v. 
Ward,  10  Yerg.  160;  Huston's  Ap- 
peal, 9  Watts,  473;  Beal  v.  Crafton, 
5  Ga.  301;  Stephenson  v.  Axsou, 
Bailey's  Eq.  274;  Gray  bill  v.  War- 
ren, 4  Ga.  538;  Yandt's  App.  13  Pa. 
St.  575;  Darden  v.  Orgain,  5  Cold. 
211.     A  received  six  thousand  dol- 


678  mxEKEST. 

Section  8. 

interest  upon  interest. 

Compound  interest  —  Instances  of  interest  upon  interest  —  Interest  on 
periodical  instalments  of  interest  —  Separate  written  agreements  for 
interest —  Computation  ;  application  and  effect  of  partial  payments. 

Compound  interest. —  Strictly,  all  interest  which  is  computed 
upon  interest  is  compound  interest.  But  that  which  is  com- 
monly denominated  such  is  interest  annually  or  at  other  suc- 
cessive periods  added  to  the  principal,  to  bear  interest  for  the 
next  interest  period ;  in  other  words,  interest  computed  with 
annual  rests,  or  rests  at  the  end  of  the  longer  or  shorter 
interest  periods ;  regularly  adding  the  interest  for  the  preceding 
period  to  the  principal,  thenceforth  to  bear  interest. 

Compound  interest  in  this  latter  sense  is  never  computed  by 
way  of  damages,  except  against  persons  acting  in  a  fiduciary 
capacity,  and  grossly  abusing  their  trust  in  respect  to  money. ^ 

JS^or  will  a  contract  in  advance  to  pay  compound  mterest  be 
enforced  at  law  or  in  equity.  But  after  simple  interest  has  ac- 
crued, an  agreement  that  it  shall  thereafter  bear  interest  is 
va  lid.2  Such  interest,  when  contracted  for  at  the  time  the  debt 
accrues  or  loan  is  made,  is  refused  on  grounds  of  pohcy  as  tend- 
ing to  usury  and  oppression.  But  after  interest  is  due,  no  mat- 
ter at  how  short  intervals  it  is  payable,  the  creditor  may  sue  for 
it ;  or  the  parties,  by  a  new  agreement,  may  put  it  upon  inter- 

lars  from  B,  and  in  consideration  2Fitzhugh  v.  McPherson,  3  Gill, 
thereof  executed  a  bond  by  which  408;  Gunn  v.  Head,  21  Mo.  432; 
he  bound  himself  to  pay  the  interest  Grimes  v.  Blake,  16  Ind.  160;  Niles 
of  that  sum,  or  so  much  thereof  as  v.  Board  of  Commissioners,  8  Blackf . 
might  be  necessary  for  B's  support,  158;  Forman  v.  Forman,  17  How. 
to  B,  for  life,  and  at  her  death  to  Pr.  255;  Van  Benschooten  v.  Law- 
pay  the  principal  and  what  might  son,  6  John.  Ch.  313;  State  of  Con- 
remain  unexpended  of  the  interest  necticut  v.  Jackson,  1  John.  Ch.  13; 
to  C.  A  was  held  liable  for  intei-est  ToU  v.  Hiller,  11  Paige,  228;  Barrow 
at  the  legal  rate,  six  per  cent.,  ac-  v.  Rhinelauder,  1  John.  Ch.  550; 
cording  to  the  legal  effect  of  tlie  Leonard  v.  Villars,  23  111.  377;  Hen- 
bond;  and  not  the  interest  received  derson  v.  Hamilton,  1  Hall,  314; 
by  him  from  his  investment  of  the  Baker  v.  Scott,  62  El.  86;  Doe  v. 
money.  Granger  v.  Pierce,  112  Warren,  7  Greenlf.  48;  Cox  v. 
Mass.  244.  See  Cory  v.  Leonard,  56  Smith,  1  Nev.  161;  Lewis  v.  Bacon, 
N.  Y.  494.  3  Hen.  &  Munf.  89;  Stone  v.  Locke, 
1  See  ante,  p.  623.  46  Me.  445. 


INTEREST    UPON   INTEREST.  679 

est.  It  has,  moreover,  been  decided  that  there  is  a  moral  obli- 
gation to  pay  interest  on  interest  for  the  time  it  has  been  in 
arrears ;  and  that  a  subsecjuent  promise  to  pay  it  for  the  tune 
already  elapsed,  is  binding.^ 

Accounts  may  be  judicially  stated  by  computing  interest 
according  to  the  practice  of  tlie  parties,  both  as  to  charging  in- 
terest on  the  items  on  each  side  from  their  dates,  and  also  as  to 
])eriodical  rests.^ 

Instances  of  interest  on  interest. —  When  a  demand  con- 
sisting of  principal  and  interest  passes  into  a  judgment  or 
decree,  as  a  general  rule,  it  bears  interest,  for  the  original  de- 
mand is  merged  in  the  judgment  or  decree.  It  is  thenceforth  a 
demand  of  a  different  nature.  The  principal  and  interest  are 
blended  together  and  adjudged  to  the  creditor  for  immediate 
payment,  or  to  be  at  once  collected.*  Where  strict  foreclosure 
was  stipulated  for  in  the  mortgage,  and  six  months  given  to  pay 
the  debt,  with  interest  at  the  rate  of  ten  per  cent.,  the  legal 
rate  being  six  per  cent, ;  it  was  held  that,  inasmuch  as  tlie  com- 
plainant was  entitled  to  strict  foreclosure,  it  was  not  error  to 
requu'e  a  higher  rate  than  is  provided  by  tlie  statute,  upon  the 
extension  of  the  time  of  payment.* 

In  a  suit  for  specific  performance  by  the  vendee,  after  he  has 
made  default  in  the  payment  of  purchase  money,  on  which  in- 
terest was  payable  annually,  the  purchase  money  to  be  paid  on 
a  decree  in  his  favor  should  include  interest  on  the  instalments 
of  interest  from  the  time  they  became  due.'^  In  such  a  case  the 
court  say :  "  We  express  no  opinion  whether  interest  upon 
such  instalments  of  interest  could  have  been  recovered  by 
the  vendor  in  a  suit  for  damages,  or  on  a  bill  for  specific  per- 
formance brought  by  him.  But  the  complainant  comes  into 
court  acknowledging  his  default  in  making  the  payments  when 
due,  and  asks  specific  performance  on  maki#g  the  payments 
now.     As  he  asks  equity,  he  must  do  equity,  and  put  the  vendor 

1  Rose  V.  Bridgeport,  17  Conn.  247:  3  See  Stevens  v.  Coffeen,  39  111. 
Camp  V.  Bates,  11  Conn.  497.  148;  State  of  Connecticut  v.  Jack- 

2  Emerson  v.   Atwater,    13  Mich,      son,  1  John.  Ch.  13. 

ni4:  Carpenter  v.  Welch,  40  Vt.  251;         4  Bissell  v.  Marine  Co.  55  Bl.  165. 
Schiefflin.  v.  Stewart,   1   John.  Cii.         5  Morris  v.  Hoyt,  11  Mich.  1. 
0-20;  Backus  v.  Elinor,  3  Cal.  231. 


080  INTEKEST. 

in  the  same  condition  as  if  the  payments  had  been  made  when 
agreed.  Had  this  money  been  paid  when  due,  it  would  have 
earned  interest  from  that  time."  It  was  held  that  interest 
should  be  computed  on  the  several  instalments  of  interest  from 
the  time  they  respectively  became  due.^ 

Interest  on  periodical  instalments  of  interest. —  The  ques- 
tion on  which  the  com-t  in  the  preceding  case  refrain  from  express- 
ing an  opinion  is  one  upon  which  the  American  courts  are  divided. 
Where  the  principal  is  payable  on  long  time,  and  the  interest  is 
payable  annually,  or  at  shorter  periods,  and  such  interest  is  not 
paid  when  due,  according  to  the  older  cases,  and  as  the  law 
seems  to  be  settled  in  a  majority  of  the  states,  no  interest  can 
be  collected  upon  such  arrears  of  interest.- 

In  several  states,  however,  the  rule  is  otherwise;  interest  on 
such  arrears  of  interest  is  allowed  from  the  time  the  same  be- 
came due,  without  rest,  to  the  time  of  computation  for  payment 
or  judgment.  Thus  in  NorLh  Carohna  it  was  held  that  where 
a  promissory  note  is  given  with  a  stipulation  that  the  interest 
is  to  be  paid  annually  or  semi-annually,  the  maker  is  chargeable 

1  Morris  v.  Hoyt,  11  Mich.  1;  Pujol  terest.     As  suit  was  not  brought  at 

V.  McKinley,  43  Cal.  559.  the  end  of  each  year  to  recover  the 

'■iFerry  V.  Ferry,  2Cush.  92;  Doe  V.  interest,    it    was  deemed    that   the 

Vallejo,  29  Cal.  285;  Ackenuau  v.  right     to     interest     annually    was 

Emott,  4  Barb.  626.     In  Henry  v.  waived.     And    in  PindaUs  Ex'r  v. 

Flagg,  13  Met.  64,  A  indorsed  sev-  Bank  of  Marietta,  10  Leigh,  481,  a 

eral  notes  to  B,  which  were  payable  debtor  owing  a  debt  consisting  of 

in  two,  three  and  more  years  from  principal  and  interest,  it  was  agreed 

date,  with  interest,  and  gave  B  a  between  him  and  his  creditor  that 

written    promise    to    pay  him  an-  he  should,  in  the  first  place,  pay  off 

nual  interest  on  the  notes,  if  the  tlie  principal,  and  that  the  interest 

makers  should  not  pay  it.     As  the  might,  for  a  time,  remain  unpaid, 

notes  became  due,  B  received  pay-  The  creditor  received  money  from 

ment  from  the  makers,  who  refused  the  debtor,  and  applied  it  in  satis- 

to    pay  annual    interest   on    them,  faction    of     the    principal.      Many 

After  all  the  notes  h^  been  paid,  B  years  elapsed  without  the  payment 

brouglit  an  action  against  A  to  re-  of  the  interest.     It  was  held  that  the 

cover  the    difference   between    the  creditor  was  only  entitled  to  the  in- 

amount  of  tlie  annual  interest  and  terest  due  at  the  time  the  principal 

the  interest  which  had  been  paid  to  was  paid,  and  not  to  interest  on  the 

him.     It  was  held  that  the  action  interest;  there  having  been  no  agree- 

could  not  be  maintained.     The  case  ment  to    pay  interest  on  interest, 

was  considered  the  same  as  though  Tocke  v.  Bonds,  29  Tex.  419,  is  to 

the  notes  were  given  for  annual  in-  the  same  effect. 


INTEEEST  upon  INTEEEST. 


681 


with  interest,  at  the  like  rate,  upon  such  defeiTed  payments  of 
interest  as  if  he  had  given  a  promissory  note  for  the  amount  of 
such  interest.^  By  this  mode  of  computation,  the  court  say, 
compound  interest  is  not  given,  but  a  middle  course  is  taken 
between  simple  and  compound  interest.^  So  in  Tennessee ;  ^  in 
Kentucky.'*  Ewing,  J.,  said:  ''The  fact  that  the  amount  so 
promised  to  be  paid  is  described  as  interest  accruing  upon  a 
larger  sum,  which  is  payable  at  a  future  day,  cannot  the  less 
entitle  the  plaintiff  to  demand  interest  upon  the  amount,  in  de- 
fault of  pa^^ment,  as  a  just  remuneration  for  the  detention  or 
non-pa\T:nent."  In  Yermont  ^  it  is  allowed  by  way  of  damages 
for  delay  of  payment ;  but  parties  cannot  stipulate  for  interest 
upon  interest  before  it  becomes  due.  In  South  Carolina,  inter- 
est overdue  bears  interest.®  So  in  Rhode  Island,  New  Hamp- 
shire, loAva,  and  Georgia,  substantially  the  same  doctrine 
prevails.'' 


1  Bledsoe  v.  Nixon,  69  N.  C.  89. 

2 Ibid;  Keunoii  v.  Dickins,  Com.  & 
Norw.  Conf.  R.  by  Battle,  357. 

3  House  T.  Tennessee  Female  Col- 
lege, 7  Heisk.  128. 

■»  Talliaf erro  v.  King's  Adm'r,  9 
Dana,  331. 

sCatlin  v.  Lyman,  16  Vt.  44. 

6 O'Neall  V.  Bookman,  9 Rich.  L.  80; 
Gibbes  v.  Chisohu,  2  Nott.  &  McC. 
38;  Singleton  v.  Lewis,  Ex'r,  2  Hill 
(S.  C.  L.),  408;  O'Xeall  v.  Sims,  1 
Strob.  L.  115;  D.-Bruhl  v.  Neuffer, 
id.  426;  Doig  v.  Barclay,  3  Rich.  L. 
125. 

TPearce  v.  Hennessy,  10  R.  I.  223; 
Lanahan  v.  "Ward,  id.  299.  In 
Wheaton  v.  Pike,  9  R.  I.  132,  Dur- 
fee,  J.,  on  this  subject,  said:  "The 
reasons  assigned  for  not  allowing 
interest,  are,  first,  that  interest  on 
interest  savoi's  of  usury,  and  is  liable 
to  bear  T\^ith  oppressive  hardship  on 
the  debtor;  and,  second,  that  the 
creditor  from  his  forbearing  to  call 
for  the  instalments  of  interest  when 
they  become  due,  may  be  presumed 
to  liave  waived  his  claim  to  interest 
on  the  same.     These  reasons  are  not 


entirely  consistent;  for  if  the  inter- 
est is  not  to  be  allowed  for  the  first 
reason,  there  can  be  no  waiver  of 
interest  to  be  jjresumed.  It  is  also 
urged  that  interest,  if  so  allowable 
upon  annual  or  semi-annual  dues  of 
interest,  should,  for  the  same  rea- 
son, when  the  debt  is  payable  with 
interest  at  a  particular  time,  be 
allowed  from  that  time  upon  the  in- 
terest then  due,  as  well  as  on  the 
principal.  Doe  v.  Wan-en,  7  Greenlf. 
48.  See  Union  Bank  v.  Williams,  3 
Cold.  579. 

"  But,  on  the  other  hand,  it  is 
urged  that  interest  upon  such  inter- 
est, whatever  saA'or  of  usuiy  it  may 
have,  is  not  usurious;  for  after  such 
interest  is  due,  the  debtor  may  law- 
fully agree  to  pay  interest  thereon; 
and  if  he  has  paid  interest  thereon, 
he  cannot  recover  it  back;  that  no 
rule  should  be  adopted  which  favors 
the  debtor  at  the  expense  of  the 
creditor;  and  that  tkere  is  no  good 
reason  why  money  due  at  a  particu- 
lar time  for  the  use  of  money, 
sliould  not  carry  interest  from  that 
time,  in  the  same  manner  as  money 


(53 


INTEKEST. 


Separate  agreements  foe  interest. —  Contracts  for  payment 
of  interest,  when  secured  by  a  separate  instrument,  will  be 
enforced  like  all  other  agreements  for  the  payment  of  money 
at  a  time  certain.     After  maturity,  interest  as  damages  will  be 


due  fox*  anything  else.  In  South 
Carolina,  where  the  rule  accords 
with  this  view,  it  has  been  held  that 
where  a  party  contracts  to  pay  a 
sum  of  money  with  interest  thereon 
on  a  given  day,  when  the  day  ar- 
rives, the  interest  becomes  principal 
and  bears  interest  for  the  future. 
Doig  V,  Barclay,  3  Rich.  L.  135. 

"  There  is  a  reason  for  not  allow- 
ing interest  upon  interest  applicable 
to  negotiable  securities,  which  we 
do  not  find  referred  to,  namely,  that 
it  may  not  be  known  to  the  debtor 
to  whom  the  interest  is  to  be  paid; 
l)ut  it  may  be  replied  that  the  same 
reason  would  hold  in  regard  to  the 
principal  of  a  negotiable  security 
payable  at  a  particular  day,  without 
interest,  upon  which,  nevertheless, 
interest  accrues  after  its  maturity." 

Peirce's  Ex  r  v.  Rowe,  1  N.  H. 
179.  "Woodbury,  J.:  "If  any  in- 
terest can  be  allowed  on  the  annual 
interest,  it  must  be  allowed  by  virtue 
of  some  general  principles,  and  not 
of  any  express  contract  for  it,  con- 
tained in  the  nota  But  those  prin- 
ciples on  the  subject  of  interest  must 
be  gathered  from  the  reasons  on 
which  interest  is  originally  founded, 
and  on  which  it  is  in  any  case  per- 
mitted without  an  express  contract 
for  its  payment.  Wherever  money 
is  due  to  an  individual,  without  any 
stipulation  as  to  interest,  some  com- 
pensation for  the  use  of  the  money 
while  wrongfully  detained,  seems 
justly  to  be  due;  because  the  use 
of  the  money  must  be  presumed 
to  be  beneficial  to  the  one  party, 
and  the  detention  of  it  injuri- 
ous to  the  other.  Indeed,  the 
increases  of  net  profit  of  property 


are  an  appurtenant  to  the  property 
itself,  and  the  same  broad  principle 
which,  without  a  special  contract, 
would  enable  the  owner  to  recover 
the  property,  would  also  entitle  him 
to  recover  its  increases.  Hence  a 
fair  reward  for  the  use  of  money 
while  negligently  or  wrongfviUy 
withlield  from  the  creditor,  ought 
always  to  be  allowed  him  in  the  nat- 
ure of  damages  for  its  detention; 
and  the  principles  of  our  civil  actions 
justify  such  an  allowance  by  per- 
mitting the  damages  recovered  to  be 
commensurate  with  the  injury  sus- 
tained. On  this  theory,  interest  will 
not  commence,  when  no  express 
contract  exists  for  it,  till  a  wrong  is 
done  by  the  debtor's  failure  to  pay 
what  has  become  due.  Because  till 
that  event,  no  breach  of  duty  has 
happened  on  his  part,  for  which 
legal  damages  can  accrue.  But  after 
money  becomes  due,  every  day's  neg- 
lect to  make  payment  of  it,  whether 
principal  or  interest,  is  an  injury  to 
the  creditor;  and  our  civil  remedies 
would  prove  defective,  and  would 
not,  as  justice  requires,  approximate 
those  specific  ones  provided  by 
equity,  unless  the  money  detained, 
and  a  compensation  for  its  use  while 
so  detained,  could  be  recovered  by 
the  creditor.  Were  this  not  the 
law,  a  strong  temptation,  also, 
would  be  presented  to  debtors  to 
violate  their  duties.  They  would, 
in  the  language  of  Lord  Mans- 
field, be  encouraged  '  to  make  use 
of  all  the  unjust  dilatories  of  clii- 
cane;'  '  and  the  more  the  plaintiff 
is  injured,  the  less  he  will  be  re- 
lieved.' "  Approved  in  Little  v.  Riley, 
43  K  H.  113;  Townsend  v.  Riley,  46 


I^•TEl:EST   UPON   INTEREST. 


683 


allowed ;  and  proof  that  the  consideration  is  interest  on  a  debt 
secured  by  another  instrument  will  be  of  no  avail  to  prevent 
such  recovery.^     A  familiar  example  are  coupons.     When  so 


N.  H.  300,  313.  But  where  partial 
payments  have  beeu  made,  during  a 
year,  the  note  bearing  annual  inter- 
est, there  should  not  be  rests  made 
for  such  intermediate  payments.  If 
such  payments  were  made  on  ac- 
count of  accruing  interest  not  due, 
they  should  be  deducted  at  the  end 
of  the  year,  but  without  interest 
upon  them;  Mann  v.  Cross,  9  Iowa, 
327;  Callioun  v.  Marshall,  61  Ga.  275. 

In  Ship  Packet,  Barker,  Master, 
3  Mason,  255,  the  naode  of  comput- 
ing interest  on  a  bottomry  bond  was 
discussed  by  Judge  Story.  "The 
rule  laid  down  by  Mr.  Marshall,  in 
his  Treatise  on  Insurance  and  BoV 
tomry  (b.  2,  ch.  4,  p.  753),  is,  that 
'  if  when  the  risk  is  ended,  the  bor- 
rower delay  payment,  the  common 
interest  begins  to  run,  ipso  jure, 
without  any  demand.  Discusso  peri- 
culo,  majus  legitima  usura  non  debi- 
tatur.  But  this  interest  was  only 
on  the  principal,  not  upon  the 
marine  interest,  for  this  would  be 
interest  upon  interest.  Accessio  ae- 
cessionis  non  est.^ 

"  For  this  doctrine  he  cites  no  Eng- 
lish authority,  but  relies  altogether 
upon  the  civil  law  and  Pothier  and 
Emerigon.  The  doctrine  of  the  civil 
law,  denying  compound  interest,  is 
not  of  universal  application  under 
the  common  law.  The  opinion  of 
Pothier  and  Emerigon  seem  cer- 
tainly opposed  to  allowance  of  inter- 
est upon  the  Inaritime  premium 
(comniohly,  but  so^aewhat  improp- 
erly, called  interest);  but  Emerigon 
admits,  in  explicit  terms,  that  tlie 
law  and  practice  in  France  are  in 
favor  of  it.  Upon  examining  his 
reasoning  on  the  subject,  it  is  by  no 


means  satisfactory,  being  obviously 
founded  upon  mere  motives  of  com- 
passion. My  opinion  is,  that  by  the 
successful  termination  of  the  voy- 
age, the  maritime  premium,  as  well 
as  the  sum  lent,  becomes  due;  the 
whole  forms  one  aggregate  debt, 
and  that  any  delay  in  his  discharg- 
ing it,  ought  to  be  followed  by  the 
allowance  of  common  interest,  ex- 
actly as  in  other  cases  of  debt.  In 
making  up  tlie  decree,  the  sum  lent 
and  the  bottomry  interest  are  to  be 
considered  as  the  principal,  and 
common  interest  upon  this  amount 
is  to  be  added  from  the  time  the 
bond  becomes  due  to  the  time  of  the 
decree. " 

The  statute  of  Oregon  allows  par- 
ties to  stipulate  that  delinquent  in- 
terest may  bear  interest,  but  not  to 
compound  it  oftener  than  once  a 
year.  In  Murray  v.  Oliver,  23  Ore. 
539,  the  action  was  on  a  note  pay- 
able in  one  year,  "with  interest  at 
the  rate  of  thirty  per  cent,  per  an- 
num until  paid,  and  interest  to  be 
jjaid  semi-annually,  and  if  not  paid 
when  due,  to  be  compounded  at  the 
same  rate."  Boise,  J.:  "We  think 
this  contract  divisible.  There  is  an 
agreement  to  pay  the  principal  and 
interest  at  the  end  of  one  year  from 
date;  then  it  is  stipulated  that  the 
interest  shall  be  paid  semi-annually," 
etc.  After  refen-ing  to  the  statutes, 
he  continues:  "It  would,  therefore, 
result  in  rendering  void  the  contract 
to  pay  interest  semi-annually,  and 
would  not  vitiate  the  contract  to  pay 
the  principal  sum  with  interest  at 
thirty  per  cent." 

1  Graeme  v.  Cullen,  and  Hunter  v. 
Johnson,  23  Grattau,  266. 


684  INTEREST. 

framed  that  they  cannot  be  separated  from  the  principal  obli- 
gation, they  are  only  equivalent  to  a  provision  in  that  obliga- 
tion for  the  payment  of  interest,  and  the  question  of  interest 
on  the  amount  so  agreed  to  be  paid  is  simply  the  question  of 
interest  on  arrears  of  interest.*  But  if  the  coupon  has  in  itself 
all  the  parts  of  a  complete  contract,  it  may  be  detached,  and  if 
negotiable,  has  all  the  qualities  of  commercial  paper.  An 
action  may  be  maintained  on  it  without  production  of  the  bond ; 
though  the  bond  may  belong  to  another  party ;  has  never  been 
issued ;  or  has  been  canceled.  And  interest  after  maturity  will 
be  given  as  on  notes  and  bills.'^ 

Periodical  interest  after  maturity  of  debt. —  In  Rhode 
Island,  where  interest  is  allowed  on  instalments  of  interest  pay- 
able at  stated  times,  after  such  instalments  become  due,  the 
question  recently  arose  whether  after  the  whole  principal  ma- 
tures and  remains  unpaid,  interest  will  become  due  thereon  peri- 
odically, in  instalments,  as  was  stipulated  before  the  principal 
fell  due.  It  was  decided  in  the  negative,  for  the  reason  that 
after  maturity  of  the  principal  sum,  both  the  accruing  interest 
and  the  principal  are  due  not  on  any  particular  day,  but  every 
day  until  they  are  paid.  In  that  case,  the  interest  by  the  con- 
tract was  pavable  semi-annuaUy.  The  court  gave  judgment 
for  the  principal,  with  simple  interest  to  the  time  of  rendering 
judgment,  together  with  interest  on  the  semi-annual  dues  of  in- 
terest, including  that  which  accrued  when  the  note  became  due.^ 
In  South  Carolina,  interest  after  maturity  may  be  regulated  by 

1  Rose  V.  Bridgeport,  17  Conn.  243.  Clark  v.  Iowa  City,  20  WaU.  583; 
See  Camp  v.  Bates,  11  id.  487;  Crosby  Durant  v.  Iowa  Co.  Wool.  C.  C.  69; 
V.  New  Loudon,  etc.  E.  R.  Co.  26  Mercer  Co.  v.  Hacket,  1  Wall.  83; 
Conn.  121;  Clarke  v.  City  of  Jaues-  Gelpcke  v.  Dubuque,  id.  175;  Mur- 
ville,  1  Biss.  98.  ray  v.  Lardner,  2  id.  110;  Northern 

2  Whitaker  v.  Hartford,  etc.  R.  R.  Penn.  R.  R.  v.  Adams,  54  Pa.  St.  44; 
Co.  8  R.  I.  47;  Thomson  v.  Lee  Co.  Pollard  v.  Pleasant  Hill,  8  Dill.  195; 
3  Wall.  327;  Aurora  City  v.  West,  7  Rogers  v.  Lee  Co.  1  Dill.  529;  Ma- 
Wall.  82;  Humphreys  V.  Morton,  100  thias  v.  Superior  Iron  Co.  70-  Pa.  St. 
111.  592;  Town  of  Genoa  v.  Wood-  160;  Norris  v,  Philadelphia,  id.  332; 
ruff,  92  U.  S.  502;  Connecticut  Mu-  Hollingsworth  v.  Detroit,  3  McLean, 
tual  Ins.  Co.  v.  Cleveland,  etc.  R.  R.  472. 

Co.  41  Barb.  9;  S.  C.  26  How.  Pr.         sWheatonv.  Pike,  9  R.  L  132. 
235;  City  v.  Lamson,  9  WaU.  477; 


INTEREST   UPON   INTEEEST. 


685 


agreement;  and  it  has  been  held  there,  that  if  agreed  to  be 
paid  periodically,  the  instalments  of  interest  accruing  after 
matmnt}",  under  such  an  agreement,  will  bear  interest.  The 
bond  was  given  in  Februar}^,  payable  on  the  first  of  the  fol- 
lowing Januar}",  and  provided  for  interest  annually.^ 


1 0'Neall  T.  Bookman,  9  Rich.  L. 
80.  Withers,  J. :  "Within  the  period 
of  the  stipulated  credit,  when  the 
interest  is  to  be  paid  annually,  no 
one  questions  that  interest  should 
be  computed  on  the  interest  from 
the  respective  periods  fixed  for  the 
payment.  (Gibbes  v.  Chisolm,  3 
Nott.  &  McC.  38,  Singleton  V.Lewis, 
Ex'r,  2  Hill  (S.  C.  L.),  408;  O'Neall 
V.  Sims,  1  Strob.  L.  115;  DeBruhlv. 
Neuffer,  id.  426.)  Thus  much  we 
must  regard  as  settled  upon  an  im- 
movable foundation  of  authority  in 
the  books  of  reports,  reinforced  by 
innumerable  instances  of  conform- 
ity in  circuit  decisions,  and  transac- 
tions of  daily  occurrence. 

"  The  cases  cited,  especially  Gibbes 
V,  Chisolm,  will  show  that  the  doc- 
trine stated  has  been  fully  discussed 
upon  considerations,  moral  and  le- 
gal, with  a  consideration  of  cases 
English  and  American,  in  law  and 
equity,  and  with  dissent  in  the  court 
at  first  (see  Gibbes  v.  Chisolm), 
reconciled  subsequently.  See  Sin- 
gleton V.  Lewis. 

"But  the  question  now  before  us 
presents  a  variation  from  some  of 
our  cases,  but  not  from  aU  of  them. 
It  is  a  case  where  the  specific  credit 
has  expired;  and  shall  the  terms, 
'with  interest  payable  annually,' 
be  applied  to  the  interest  annually 
acci-uing,  at  the  period  of  each  year 
following  the  time  set  for  the  pay- 
ment of  the  principal  ?  Why  should 
they  not  so  apply,  when  they  were 
60  intended  by  the  parties?  Un- 
doubtedly they  must,  if  the  law  do 
not  forbid.     There  can  be  no  law  to 


forbid,  unless  it  can  be  found  in  the 
legislation  upon  usury.  That  forbids 
one  '  to  take,  directly  or  indirectly, 
for  loan  of  any  moneys,  etc.,  above 
the  value  of  seven  pounds  for  the 
forljearauce  of  one  hundred  pounds 
for  one  year,  and  so  after  that  rate 
for  a  greater  or  lesser  sum,  or  for  a 
longer  or  shorter  time.'  We  have 
already  seen  that  it  is  not  unlawful  — 
that  it  is  not  usurious  —  to  compute 
interest  upon  the  interest,  promised 
to  be  paid  at  the  expiration  of  each 
year,  within  the  period  of  credit  ex- 
pressly stipulated.  But  this  decides 
the  whole  question;  for  it  only  re- 
mains in  each  case  to  ascertain  what 
the  debtor  has  promised;  whether 
he  intended  to  promise  to  pay  in- 
terest annually,  beyond  the  time 
fixed  for  the  payment  of  the  prin- 
cipal, if  forbearance  should  extend 
beyond  that  time;  for  if  he  did, 
there  is  no  more  usury  in  applying 
the  same  iiile  of  computation  to  the 
year  next  follo^viug  than  to  the  next 
preceding  that  time.  The  matter  is 
thus  solved:  A  party  promises  to  pay 
at  a  given  time,  one  hundred  dollars, 
with  interest  from  a  given  time.  At 
the  day  of  paj-ment,  what  is  due  ? 
The  principal  and  interest.  From 
that  time  what  is  forborne?  Not 
tlie  principal  only,  but  all  as  to 
which  default  is  made,  to  wit:  the 
principal  and  interest;  both  are 
equally  payable  at  the  time.  So  it 
is  not  the  forbearance  of  one  hun- 
dred dollars  merely,  but  of  more;  and 
where  the  contract  —  whether  ex- 
pressly or  by  legal  implication  — 
extends  to  another  succeeding  period 


686 


INTEREST. 


Computation;  application  and  effect  of  partial  payments.- — 
The  established  mode  in  the  court  of  chancery  of  computing- 
interest  is,  that  whenever  a  sum  is  to  be  credited,  more  than 


of  time,  when  the  interest  is  again 
payable,  there  is  another  sum,  at 
such  time,  in  addition  to  the  prin- 
cipal, again  forborne.  It  is  at  last 
but  seven  per  cent,  per  annum,  or  at 
that  rate,  for  the  forbearance  of  one 
hundred  dollars,  or  for  a  greater  or 
less  sum.  Singleton  v.  Lewis  pre- 
sents a  direct  authority  for  the 
application  of  this  rule  of  computing 
interest  upon  the  interest  accrued, 
for  years  succeeding  the  time  fixed 
for  jjayment  of  tlie  principal.  In 
that  case,  the  credit  for  the  latter 
expired  one  year  from  date,  accord- 
ing to  the  tei'nis  used.  Yet  the 
promise  w^as:  'with  lawful  interest, 
payable  annually.'  The  necessary 
implication  was  that  the  debtor 
promised  to  pay  interest  annually 
for  a  period  beyond  the  first  year, 
else  the  words  to  that  purport  would 
avail  nothing  whatever,  inasmuch 
as  the  interest  due  a  year  after  date 
would  have  drawn  interest  without 
them.  It  was  said  in  O'Neall  v. 
Sims,  '  tliat  in  all  cases  in  which 
the  comjiounding  of  interest,  whilst 
the  collection  of  principal  during 
the  whole  time  is  at  the  discretion 
of  the  creditor,  seems  to  savor  of 
usury,  or  may,  by  abuse,  be  per- 
verted to  the  purposes  of  the  usurer.' 
"  That  which  touches  the  question 
of  mutuality  in  a  contract  need  not 
affect  the  question  of  usuiy.  There 
can  be  no  illegality  for  any  reason 
in  a  promise  to  paj'  one  hundred 
dollars,  with  interest,  at  the  end  of 
a  year,  and  if  not  then  paid,  and  so 
long  as  the  same  may  remain  un- 
paid, the  interest  thereon  shall  be 
paid  annually;  and  if  this  can  be 
gathered  from  the  contract  to  be  the 
agreement,  it  is  not  obvious  how  the 


mere  fact  that  the  creditor  is  at 
liberty  to  sue  for  his  money,  in  any 
case,  will  make  that  usury  which  is 
not  so  for  some  other  reason.  In  the 
case  of  Eaton  v.  Bell,  7  E.  C.  L.  13. 
S.  C.  5  B.  &  Aid.  34,  bankers,  who 
advanced  money,  made  half-yearly 
rests,  and  carried  the  interest  to  the 
principal,  and  computed  interest  on 
the  aggi'egate,  indulging  for  a  con- 
sidei'able  space  of  time,  and  this 
mode  of  computation,  being  acqui- 
esced in,  was  ratified  by  the  king's 
bench,  and  held  free  from  the  taint 
of  usury.  That  court  referred  to 
and  recognized  the  doctrine  of  Lord 
Eldon,  in  Ex  parte  Bevan,  9  Ves. 
223,  that  a  prior  contract  for  a  loan 
for  twelve  months,  to  settle  the  bal- 
ance at  the  end  of  six  months,  and 
convert  the  interest  then  accrued 
into  principal,  would  be  bad  for 
usury;  yet  that  the  same  thing 
actually  done  at  the  end  of  six 
luonths,  and  a  stipulation  to  forbear 
such  aggregate,  woidd  be  legal. 
Kelly  on  Usury,  Law  Library,  No. 
65,  p.  48,  supposes  such  dicta  must 
be  understood  as  applying  to  mort- 
gages of  real  property  only.  It  is 
finally  to  be  remarked  that  if  at  the 
end  of  each  year  a  party  may  give 
an  interest-bearing  note  for  the  in- 
terest, which  notes  would  be  un- 
questionably vaUd;  there  can  be  no 
reason  why,  at  the  inception  of  the 
contract,  he  may  not  provide  terms 
that  shall  produce  the  self-same 
result.  Of  course,  an  inference  that 
the  parties  agreed  for  compound 
interest  may  be  drawn  from  their 
dealings,  in  like  manner  as  the  in- 
ference may  be  drawn  from  the  same 
source  as  to  simple  interest.  We 
adjudge    that  the  plaintiff,  in   the 


INTEEEST  TTPON   INTEREST. 


687 


the  interest  at  that  time  due,  a  balance  is  to  be  struck.^  And 
the  same  rule  apphes  at  law.  Where  partial  payments  are 
made  on  a  money  demand  after  maturity,  the  payment  is  ap- 
plied in  the  first  place  to  discharge  the  interest  then  due ;  if  the 
payment  exceeds  the  interest,  the  surplus  goes  towards  dis- 
charging the  principal;  and  tlie  subsequent  interest  is  to  be 
computed  on  the  balance  of  the  principal  unpaid.  II  the  pay- 
ment be  less  than  the  interest,  the  surplus  interest  must  not  be 
taken  to  augment  the  principal;  but  interest  continues  on  the 
principal  until  pa^inents  are  made  suiiicient  to  extinguish  the 
interest  to  that  date.  If  there  be  a  surplus  of  such  payment,  it 
is  applied  to  the  principal.  A  like  application  is  made  of  aU 
payments.-  This  rule  applies  to  payments  upon  judgments," 
to  demands  upon  which  interest  is  allowed  only  in  the  discretion 
of  the  jury,  if  interest  is  given ;  *  and  uuon  accounts  where  the 
credits  are  payments.* 


present  case,  was  entitled  to  com- 
pute interest  upon  the  interest  fall- 
ing due  each  yeai',  as  was  allowed 
in  Singleton  v.  Lewis,  the  terms 
importing  and  the  agreement  being 
at  least  as  clear  in  the  present  case 
as  in  that." 

1  CliapUne  v,  Scott,  4  Har.  &  Mc- 
Hen.  91. 

-  Russell  T.  Lucas,  Hemp.  C.  C.  91 ; 
Anonymous,  Martin  &  Hayw.  169; 
Baker  v.  Baker,  28  N.  J.  L.  13:  De 
Ende  v.  Wilkison,  2  Pat.  &  H.  6G3; 
Baum  V.  Moon,  1  Hayw.  323;  Van 
Benschooten  v.  Lawson,  6  John.  Ch. 
313;  Stoughten  v.  Lynch,  2  id.  209; 
Better  v.  Farewell,  15  U.  P.  C.  P. 
450;  Scanland  v.  Houston,  5  Yerg, 
310;  Dean  v.  Williams,  17  Mass.  417; 
Stoiy  V.  Livingston,  13  Pet.  359; 
State  of  Conn.  v.  JacJcson,  1  John. 
Ch.  13;  Ti-acy  v.  WikofT,  1  Dall.  124; 
Penrose  V.  Hart,  id.  378;  Lewis.  Ex'r, 
V.  Bacon's  Legatee,  etc.  3  Hen.  & 
Muuf.  89;  Edes  v.  Goodridge.  4  Mass. 
103;  Meredith  v.  Banks  G  N.  J.  L. 
408;  Houston  v.  Crutcher,  31  Miss. 
51;  Matter  of  Estate  of  Don,  35  Cal. 


692;    Backus  v.   Minor,  3    id.    231; 
Gwinn   v.  AVhitaker,   1   Har.   &  J. 
754;   Lightfoot  v.  Price,  4  Hen.  & 
Munf.  431. 
SHodgdon  v.  Hodgdon,  2  N.  H.  169. 

4  Peebles  v.  Gee,  1  Dev.  L.  341. 

5  Ross  V.  Russell,  31  N.  H.  386,  wtis 
an  action  on  an  account  stated.  Dur- 
ing seven  years  after  statement  of 
the  account,  nine  payments  were 
made  upon  it,  aggregating  more 
than  the  principal  of  the  account. 

Woods,  C.  J.,  said:  •'  Tlie  mode  of 
computing  interest  upon  promissory 
notes  seems  to  have  been  perfectly 
settled  by  the  usages  of  business, 
and  by  judicial  decisions,  in  many 
jurisdictions,  and  we  are  not  aware 
of  any  deflections  from  the  mle  by 
any  extended  usage  or  any  respect- 
able authorities.  The  authorities  in 
the  plaintiff's  argument  are  uniform 
in  support  of  it,  and  the  unvarying 
pi^actice  of  this  court  is  likewise 
believed  to  have  been  in  harmony 
with  it.  We  do  not  understand  the 
argument  of  tlie  defendants  as  draw- 
ing the  rule  into  question;  but  as  in- 


CSS 


mTEKEST. 


Rests  in  an  account,  bearing  interest,  and  consisting  of 
numerous  items,  are  a  proper  substitute  for  computation  of 
interest  on  each  item.^ 


sisting  upon  a  distinction  between 
the  present  contract  and  a  proniis- 
soiy  note;  as  well  as  upon  the  nat- 
ure of  the  contract  itself;  as,  for 
the  reason  that  the  frequency  with 
which  the  payments  were  made, 
renders  the  application  of  such  a  rule 
unreasonably  onerous  to  the  party; 
and  therefore  not  within  the  general 
maxim  of  allowing  such  interest  as 
shall  be  just  and  reasonable.  In 
other  words,  they  claim  to  have 
paid  the  money  due  on  the  contract; 
that  the  several  payments  from  time 
to  time,  made  in  discharge  of  it, 
should  be  treated  like  items  of  a  mu- 
tual account,  in  which  the  relation 
of  debtor  and  creditor  is  not  recog- 
nized between  the  parties,  except 
upon  final  settlement,  or  upon  the 
recurrence  of  such  periodical  rests 
as  are  allowed  by  courts  sometimes, 
when  the  justice  of  the  case  seems 
to  require  it.  If  this  were  a  correct 
view  of  tlie  case,  the  question  for  the 
court  would  be  as  to  what  interest 
ought  to  be  allowed,  and  what  rests 
established  for  computing  it.  .  .  . 
It  was  from  the  beginning  a  debt 
for  goods  sold  to  the  defendants, 
and  by  the  admission  of  the  party 
drawing  interest;  and  the  sums  of 
money,  from  time  to  time  received 
by  the  plaintiff  of  the  defendants, 
were  not  of  the  natui-e  of  items  of 
mutual  account,  but  as  the  auditor 
finds,  and  as  clearly  appears,  pay- 
ments made  towards  the  extinguish- 
ment of  the  debt,  and  applicable  as 
payments  ordinarily  are,  or  should 
by  law  be,  towards  interest  or  prin- 
cipal, according  to  "the  direction  that 
the  law  gives  to  such  payments  in 
tlie  silence  of  the  parties  in  respect 
to  them.     We  find  no  ground  upon 


which  we  can  exempt  this  contract 
to  pay  money  with  interest  from  the 
general  rule  shown  to  govern  prom- 
issory notes  in  the  particulars  in 
controversy.  The  principal  was  pay- 
able on  demand,  and  the  interest,  of 
course,  also.  The  plaintiffs  had  a 
right  to  insist  upon  the  payment  of 
interest,  as  often  as  interest  accrued, 
and  could  have  encountered  any  at- 
tempt of  the  defendants  to  apply  a 
payment  towards  the  principal,  by 
demand  of  fresh  payment  on  account 
of  interest.  The  legal  presumption, 
then,  was,  that  the  payment  was 
made  first  in  reduction  of  the  claim 
■which  did  not  carry  interest;  that 
is,  the  interest  itself."  McGregor  v. 
Ganlin,  4  U.  C.  Q.  B.  378. 

The  court  held  in  Gwinn  v.  Whita- 
ker,  1  Har.  &  J.  754,  that  a  pay- 
ment by  a  debtor  must  be  first  ap- 
plied to  extinguish  the  interest  of 
his  debt,  and  then  to  the  principal; 
and  that  a  different  application  is 
not  in  the  discretion  of  the  debtor. 
But  in  Pendall's  Ex'r  v.  Bank  of 
Marietta,  10  Leigh,  484,  it  was  held 
that  a  debtor  owing  a  debt  consisting 
of  principal  and  interest,  and  making 
a  partial  payment,  has  a  right  to  di- 
rect its  application  to  so  much  of 
the  principal  in  exclusion  of  the  in- 
terest, and  the  creditor,  if  he  re- 
ceives it,  is  bound  to  apply  it  accord- 
ingly. And  this  was  approved  in 
Miller  v.  Trevillian,  2  Rob.  1,  which 
decided  also  that  a  case  is  not  taken 
out  of  the  influence  of  that  princi- 
ple by  the  circumstance  that  the 
party  receiving  the  payment  is 
fiduciary. 

1  Harding  v.  Howdy,  11  Wheat. 
103;  Schieffelin  v.  Stewart,  1  John. 
Ch.  620. 


INTEKEST  UPON  INTEREST. 


689 


Wliere  payments  are  made  on  a  debt  before  it  is  due,  and 
before  it  begins  to  bear  interest,  the  party  making  the  payment 
is  not,  without  some  stipulation  to  that  effect,  entitled  to  inter- 
est up  to  the  time  the  debt  begins  to  bear  interest.'  If,  how- 
ever, the  debt  bears  interest,  and  a  payment  is  made  and 
accepted  before  the  money  is  due,  it  should  be  immediately 
applied  to  the  principal  and  accrued  interest  which  would  next 
become  due.- 


iKillian  v.  Herndon,  4  Rich.  L. 
609. 

2  French  v.  Kennedy,  7  Barb.  452; 
Miami  Exporting  Co.  v.  Bank  of  U. 
S.  5  Ohio,  260;  Williams  v.  Hough- 
taling,  3  Cow.  86;  Tracy  v.  Wikoff, 
1  Dall.  133.  In  Miami  Exporting 
Co.  V.  Bank  of  U.  S.  supra,  eight 
notes  were  made  Oct.  21, 1820.  They 
were  severally  x^ayable  on  or  before 
the  first  day  of  December,  1823,  and 
succeeding  years  to  1830,  and  all 
were  on  interest  from  Dec.  1,  1819. 
Lai'ge  payments  w^ere  made  on  these 
notes  in  1821  and  1823. 

Hitchcock,  J.,  said:  "On  the  part 
of  the  defendants,  it  is  insisted  that 
inasmuch  as  these  notes  are  paya- 
ble on  or  before  a  particular  day, 
and  payments  were  made  before 
that  day,  they  have  a  right  to  com- 
pute interest  upon  the  principal  sum 
up  to  the  time  of  payment,  and  so 
on  from  time  to  time  as  payments 
were  made.  Had  the  interest  been 
due  when  the  paj^ments  w^ere  made, 
this  rule  would  not  have  been  so  ob- 
jectionable, although  we  are  not 
l^repared  to  say  it  would  be  coi'rect. 

"In  support  of  the  principle  con- 
tended for,  the  defendants'  counsel 
cite  8  S.  &  R.  378;  Wash.  C.  C.  92; 
17  Mass.  417;  1  John.  Ch.  13;  2  John. 
Ch.  209;  and  a  number  of  other 
cases.  In  all  these  cases,  I  appre- 
hend, it  will  be  found  that  none  of 
the  payments  were  made  until  after 
the  debt  was  due;  at  least  the  cou- 
VOL.  1  —  44 


trary  does  not  appear  to  have  been 
the  fact.  The  cases  in  Sargent  & 
Rawle,  and  the  one  in  Washington, 
are  upon  judgments.  In  the  case 
before  the  court,  no  interest  was  de- 
mandable  vmtil  the  notes  tliemselves 
became  due.  To  adopt  this  rule, 
then,  would  be  doing  injustice  to 
the  plaintiffs.  It  would  be  charg- 
ing them  with  interest,  before  they 
could  be  called  upon  for  either  prin- 
cipal. 

"  To  adopt  what  is  called  the  com- 
mercial rule  would  be  equally  un- 
just to  the  defendants.  There  would 
not  be  the  same  injustice  in  this 
case,  it  is  true,  that  there  would  be 
where  the  payments  had  been  long 
delayed  and  the  debt  hatl  been  even 
due  for  a  great  length  of  time.  In 
such  case  it  might  so  hapi^en  that 
the  i)ayment  of  interest  alone  would 
discharge  both  principal  and  inter- 
est. The  case  cited  from  1  Dallas 
seems  to  recognize  this  principle. 
But  it  must  be  remembered  that  the 
notes  here  were  payable  on  or  be- 
fore a  certain  day,  although  the  de- 
fendants could  not  compel  payment 
before  the  daj-;  yet  the  plaintiffs 
might  pay  before  that  time,  and  the 
defendants  might  be  compelled  to 
receive  it.  They  could  only  be  com- 
pelled to  receive  it  upon  the  hypoth- 
esis that  fuU  payment  was  made, 
not  only  principal,  but  interest.  If, 
then,  partial  paj-ment  only  is  made, 
it  would  seem  to  be  just  that  this 


G90  INTEREST. 

In  the  computation  for  the  purpose  of  applying  a  partial  pay- 
ment made  after  the  principal  sum  is  due,  no  notice  is  taken  of 
the  time  wlien  such  principal  falls  due.  The  rests  are  to  be 
made  when  the  payments  are  actually  made ;  unless  the  pay- 
ments fall  short  of  the  interest ;  in  which  case,  as  before  stated, 
the  rest  is  deferred  until  the  amount  paid  equals  or  exceeds  the 
interest  due ;  then  the  money  paid  is  applied  first  to  discharge 
the  interest,  and  if  there  is  a  surplus  of  the  payment,  it  is 
applied  to  reduce  the  principal.^  But  in  Ehode  Island,  where, 
as  before  remarked,  instalments  of  interest  bear  interest  while 
in  arrear,  a  rest  is  to  be  made  at  the  time  the  principal  should 
have  been  paid,  though  no  payment  is  then  made.  In  a  recent 
case,  a  rule  was  laid  down  for  computing  the  amount  due  at 
any  given  time,  on  a  bond  to  pay  $7,500  on  or  before  May  Y^ 
1859,  with  interest  from  date  at  the  rate  of  seven  per  cent, 
per  annum,  payable  on  the  Tth  of  May,  1859;  and,  after 
that  time,  semi-annually,  until  the  principal  sum  be  paid.  It 
was  held  that  the  seven  per  cent,  instalments  should  be  reck- 
oned with  interest  on  them  up  to  the  time  when  the  principal 
was  due;  and  seven  per  cent,  simple  interest  on  the  amount 
then  found  due,  from  thence  until  the  tune  to  which  the  amount 
is  to  be  computed ;  inasmuch  as  by  force  of  the  words,  "  until 
the  principal  sum  be  paid,"  the  contract  rate  must  be  held  to 
govern  to  the  time  of  actual  payment,  although  after  maturity,^ 
The  rule,  which  has  been  stated  as  applicable  where  partial 
payments  have  been  made,  is  intended  to  prevent,  and  does 
prevent,  interest  being  computed  upon  interest ;  and,  of  course, 
must  be  modified  where  interest   payable  at  particular  times, 

partial    payment    should    apply   as  $100  on  or  before  the  termination  of 

well  to  interest  as  principal.     We  one  year.     At  the  end  of  six  months 

have  found  but  one  case  reported  a  payment  of  $51.50  is  made.     This 

similar  to  the  one  now  bef  oi-e  the  is  not  applied  to  sink  the  principal 

court.     This  case  is  reported  in  3  to  $48.50;  but  the  $1.50  is  applied  to 

Cow.  86.     The  court    says:     'Pay-  the  interest  of  $50  for  six  mouths, 

ment  made  on  an  instalment  not  and   $50  to  sink  so  much   of    the 

due  and  payable  should  be  applied  principal.     At  the  end  of  the  year 

to  the  extinguishment  of  principal,  there  will  be  due  $50  of  principal, 

and  such  proportion  of  interest  as  and  the  interest  on  that  $50  for  one 

has  accrued  on  the  principal  thus  year.'" 

extinguished.     For  instance,  a  bond         i  French  v.  Kennedy,  supra. 
or  note  given  for  the  payment  of         2  Lanahan  v.  Ward,  10  R.  I.  299. 


SUSPENSION   OF   INTEREST.  691 

romaiiiing"  unpaid,  is  alloTved  to  bear  interest.  In  Xorth 
Carolina,  the  rule  for  computing  interest  on  a  bond,  on  which 
interest  is  payable  annually,  is  to  calculate  the  interest  on  the 
bond  for  the  first  year,  setting  the  interest  aside,  and  then  for 
the  second,  third,  and  so  on,  until  the  time  for  the  first  payment. 
Then  calculate  the  interest  on  each  year's  interest  to  the  same 
time,  and  apply  the  payment  first  to  the  extinguishment  of  this 
interest,  and  the  surplus,  if  any,  to  the  reduction  of  the  prin- 
cipal. If  the  payment  is  not  sufficient  to  pay  this  interest,  it 
is  apphed  first  to  extinguish  the  interest  calculated  on  each 
year's  interest,  and  the  surplus  to  the  principal  interest  as  far  as 
it  will  go.  If  the  payment  is  not  enough  to  satisfy  the  interest 
on  the  interest,  it  is  set  aside,  and  neither  stops  nor  bears  inter- 
est,^ If  an  erroneous  rule  of  computing  interest  is  adopted  with 
the  knowledge  and  consent  of  the  parties,  although  adopted 
ignorantly,  it  is  a  mistake  of  law ;  but  if  there  is  a  mistake  in 
the  calculation,  it  is  a  mistake  of  fact.^ 

Section  9. 

suspension  of  interest. 

Where  payments  prevented  by  judicial  process  —  By  war  —  By  tender. 

Interest  given  as  damages  results  from  the  debtor's  default. 
When  he  owes  money,  and  he  knows  what  he  should  pay,  he  is 
chargeable  with  interest  from  the  time  when  he  ought  to  pay  it. 
But  if  he  is  prevented  from  paying  by  the  act  or  neglect  of  the 
creditor,^  or  by  law,  he  is  not  in  default ;  and  no  interest  is  allow- 
able during  the  period  he  is  so  prevented.  The  fact  that  when  an 
instalment  of  interest  became  due,  the  mortgagor  was  unable  to 
find  the  mortgagee,  until  after  the  period  required  for  the  pay- 
ment of  interest,  in  order  to  prevent  the  principal  from  coming 
due,  is  not,  in  the  absence  of  any  fraud  on  the  part  of  the  mort- 
gagee, a  defense  to  a  foreclosure  of  a  mortgage  for  the  payment 
of  the  principal.-'  Nor  is  interest  suspended  on  a  bond  or  note, 
while  it  is  lost  or  mislaid,  unless  tender  is  made.^     But  where 

1  Bratton  v.  Allison,  70  N.  C.  498.  *  Dwight    v.    Webster,    10    Abb. 

2  Baker  v.  Baker,  28  N.  J.  L.  13.  128. 

3  Thompson    v.     FuUeuvvider,     5  5  Payne  v.  Clark,  33  Mo.  259. 
Bradw,  551. 


692  INTEKEST. 

a  person,  entitled  to  an  annuity,  removed  to  parts  unknown,  and 
made  no  demand  of  tlie  administrator  for  many  years,  till  suit 
was  instituted,  the  court  refused  to  allow  interest,  except  from 
the  commencement  of  suit ;  on  the  ground  that  the  allowance  of 
interest,  in  such  cases,  is  not  matter  of  positive  law,  but  dependent 
on  the  circumstances.^ 

Where  payments  prevented  by  legal  process. —  In  case  of 
garnishment,  trustee  process,  or  restraint  by  other  judicial  pro- 
ceeding, where  the  indebtedness  is  of  such  a  character  that  in- 
terest can  only  be  recovered  for  wrongful  detention  of  the 
principal  sum,  the  question  whether  the  debtor  who  is  subjected 
to  such  process  shall  pay  interest  during  the  pendency  of  the 
proceeding,  has  been  much  discussed  and  variously  decided.  In 
the  N"ew  England  States,  and  some  others,  perhaps,  the  trustee 
is  not  generally  held  chargeable  with  interest  during  the  time 
he  is  under  the  restraint  of  the  proceedings ;  ^  unless  the  funds 
have  been  retained  under  such  circumstances  that  the  court  can 
infer  that  they  have  earned  interest ;  ^  or  the  trustee  practices 
unreasonable  delay  in  making  his  answer,  for  the  purpose  of 
obtaining  a  longer  use  of  the  money.* 

Where  a  corporation  was  the  trustee,  whose  business  was  not 
to  employ  its  funds  in  trade  and  business,  the  court  held  that  it 
has  done  its  duty  if  it  has  the  funds  ready,  upon  the  determina- 
tion of  the  case,  to  pay  such  judgment  as  shall  be  rendered.^  So 
it  has  been  held  by  the  national  supreme  court,  that  if  money 
be  enjoined  in  the  hands  of  a  party,  who  is  thereby  prevented 
from  making  any  use  of  it,  interest  is  not  allowed.^  In  an  action 
in  New  York  upon  a  note,  it  was  said  that  a  person  who  is  pro- 
hibited by  injunction  from  paying  the  principal,  will  not  be  com- 
pelled to  pay  interest ;  and  one  who  causes  such  injunction  is  not 

ijane  v.  Hagan,  10  Humph.  333.  ■*  Oriental  Bank  v.   Fremont  Ins. 

2Rennellv.  Kimball,  5  Allen,  356;  Co.  4  Met.   1;  Rusliton  v.  Rowe,  64 

Prescott    V.    Parker,   4    Mass.    170;  Pa.  St.  63. 

Adams  V.  Cardis,  8  Pick.  260;  Smith  ^gwanscot  Machine  Co.  v.  Part- 

V.  Flanders,  129  Mass.  322;  Huntress  ridge,  supra.     See  Norris  v.  Hall,  18 

V.  Burbank,  111  Mass.  213.  Me.  332;  Chase  v.  Mauhardt,  1  Bland, 

3  Brown  v.   Silsby,   10  N.  H.  521;  333. 

Swanscot  Machine  Co.  v.  Partridge,  « Osborn    v.    Bank    of    U.    S.    9 

25  N.  H.  369;  Pierce  v.  Rowe,  1  N.  Wheat.  738;  Wade  v.  Wade's  Adm'r, 

H.  179.                 '  1  Wash.  C.  C.  477. 


SUSPEXSION    OF    INTEREST.  C93 

entitled  to  it.  The  debtor  in  that  case  supposed  he  vras  en- 
joined, but  was  not ;  and  not  being  compelled  to  retain  the  money, 
was  held  liable  to  pay  interest.^ 

In  'New  Jersey,  the  obhgee  of  a  bond,  for  the  purpose  of  hav- 
ing it  collected,  made  an  unconditional  assignment.  After- 
wards, fearing  that  the  assignee  would  appropriate  the  money 
to  his  own  use,  the  assignor  filed  a  bill  in  equity  to  restrain  the 
obligor  from  paying  the  money  to  the  assignee,  and  the  assignee 
from  receiving  it.  It  was  held,  that  during  the  continuance  of 
the  injunction,  the  obligor  was  not  chargeable  with  interest.^ 

In  Pennsj^lvania,  where  the  debt  is  the  subject  of  a  foreign 
attachment,  the  interest  ceases  on  the  service  of  the  attachment, 
if  the  debtor  is  ready  and  willing  to  pay  the  debt  and  interest ; 
but  he  is  not  entitled  to  the  benefit  of  this  rule  whore  the  delay 
is  caused  by  his  litigiousness  and  unreasonable  conduct.  The 
court  suggest  that  a  sure  wa}''  for  the  garnishee  to  avoid  hability 
for  interest,  is  to  pay  the  money  into  court.* 

In  an  Ohio  case,  the  court  said  the  exemption,  by  reason  of 
an  injunction  or  garnishment,  seems  to  rest  entirely  upon  the 
idea  of  the  party  having  the  money  actually  in  readiness  to  be  dis- 
posed of,  as  directed  by  the  cornet ;  and  so  being  in  the  custody  of . 
the  law,  is  to  be  regarded  as  a  quasi 'psijment,  as  if  placed  on  de- 
posit, subject  to  the  order  of  the  court ;  and  referring  to  the 
case  in  hand,  the  court  say :  "  JSTothing  short  of  such  a  state  of 
facts,  we  think,  should  have  exempted  the  defendant  in  this 
case  from  the  payment  of  interest  during  the  pendency  of  the 
attachment  proceedings.  The  record  shows  no  proof  of  such  a 
state  of  facts  in  this  case.  It  is  not  pretended  that  the  defend- 
ant, either  before  or  during  the  attachment  proceedings,  ex- 
pressed a  wish  or  even  willingness  to  pay  his  indebtedness.  ISTor 
does  it  appear  that  he  was  ready  to  pay.  If,  then,  he  is  in  law 
exempt  from  the  payment  of  interest  during  the  tune  of  his 
garnishment,  for  the  reason  that  he  was  actually  holding  the 

1  Stevens  v.  Barringer,  13  Wend.  Irwin  v.  Pittsburgh,  etc.  R.  R.  Co. 

639.  43  Pa.  St.  488;  Mackey  v.  Hodgson, 

2Branthwait  v.   Halsey,  9  N.  J.  9  Pa.  St.  468;  Updegroff  v.  Spring,  11 

L.  3.  S.  &  R.    188.     See  also   Stevens  v. 

3Rushton  V.   Rowe,  64  Pa.  St.  63.  Gwathmey,  19  Mo.  028;  Goodwin  v. 

See  Fitzgerald  v.  Caldwell,  2  Dall.  McGehee,  19  Ala.  468. 
218;  Jackson  v.  Lloyd,  44  Pa.  St.  82; 


694  INTEREST. 

money,  ready  and  willing  to  pay,  but  was  prevented  by  the  at- 
tachment proceedings,  such  state  of  facts  must  be  presumed. 
But  a  presumption  is  the  supposition  of  a  truth,  grounded  on 
circumstantial  or  probahle  evidence.  It  should  always  be  a  nat- 
ural and  reasonable  deduction  from  pertinent  circumstances  and 
relative  to  existing  facts,  to  constitute  a  legal  presumption.^ 

In  Alabama,  where  a  bill  was  filed  for  the  purpose  of  sub- 
jecting a  sum  of  money  in  the  hands  of  a  third  person  to  the 
payment  of  a  debt  due  to  the  complainant,  it  was  held  that  if 
such  person  is  enjoined  from  using  it,  and  he  does  not  offer  to 
bring  it  into  court,  but  insists  upon  his  right  to  retain  it,  both 
against  the  complainant  and  his  debtor,  he  should  be  charged 
with  interest.^  In  a  later  case,  a  debtor  was  enjoined  from  pay- 
ing over  money  to  his  creditor,  but  was  not  restrained  from 
using  it  in  any  other  manner ;  it  was  held  that  he  could  only 
discharge  himself  from  paying  interest  by  paying  the  money 
into  court.  ^ 

In  Kentucky,  a  debtor  is  not  excused  from  paying  interest 
because  the  fund  is  attached  in  his  hands  by  a  biU  in  chancery, 
unless  he  brings  the  money  into  court,  or  shows  that  he  was 
prevented  from  using  it.^ 

In  Marjdand,  in  a  suit  upon  an  injunction  bond,  given  upon 
the  granting  of  an  injunction  to  restrain  the  payment  of  a  sum 
of  money,  interest  on  this  sum  is  recoverable,  as  a  matter  of 
right,  up  to  the  time  it  was  paid  into  court  upon  the  dissolution 
of  the  injunction.  This  right  of  action  and  recovery  proceeded 
on  the  assumption  that  the  debtor  enjoined  was  exempt  from 
paying  interest  during  the  continuance  of  the  injunction.^ 

In  Yirginia,  it  is  held  that  although  a  debtor  is  restrained 
from  paying  money  by  attachment,  he  ought  nevertheless  to 
pay  interest  during  the  time  he  was  so  restrained,  if  he  continues 
to  hold  the  money.*^ 

iCandee  v.  Webster,  9  Ohio  St.  Rand.   434.     Carr,   J.,   said:     "The 

452.  last  objection  to  the  decree  is,  that 

2  Kerkman  v.  Vanher,  7  Ala.  217.  it  gives  interest  while  the   money 

3  Bullock  V.  Ferguson,  30  Ala.  227.  was  stayed  in  the  party's  hands,  and 

4  Shacklef  ord    v.    Helm,    1   Dana,  it  would  have  been  a  contempt  to 
388.  have  paid  it  out.     I  have  examined 

sWallisv.  Dilley,  7  Md.  237.  the  case  of  Tazewell,  Ex'r,  v.  Bar- 

6  Templeman     v.     Fountleroy,     3     rett,  4  Hen.  &  Munf .  159,  and  think 


SUSPENSION    OF    INTEREST.  695 

There  is  practical  good  sense  in  the  rule  which  requires  the 
debtor,  who  is  restrained  from  paying  money  to  his  creditor,  to 
pay  it  into  court,  if  he  would  exempt  himself  from  liability  to 
pay  interest.  A  debtor  who  is  in  default,  and  therefore  liable 
to  interest  when  the  restraining  process  is  served,  has  no  cause 
to  complain  that  that  liabihty  continues ;  for  the  process,  in  re- 
straining him  for  the  time  being,  operates  in  harmony  with  his 
own  choice.  When  the  course  of  the  proceedings  admonishes 
him  that  the  money  may  be  required  so  soon  that  he  can  make 
no  further  beneficial  use  of  it,  the  option  to  pay  it  into  court  is 
equivalent  to  the  option  to  pay  it  to  his  creditor ;  and  having 
this  election  from  the  first,  it  cannot  be  said  that  the  law  com- 
pels him  to  keep  the  money  at  all ;  he  is  not  prevented  for  any 
time  whatever  from  making  payment,^ 

"Where  war  prevents  payment. —  War  suspends  commercial 
intercourse  between  the  belligerent  nations,  and  the  citizens  or 
subjects  of  each  are  enemies  of  the  citizens  or  subjects  of  the 
other.  Their  contracts  are  prevented  by  law  from  being  per- 
formed while  this  hostile  relation  subsists.     Interest  cannot  be 

the  principle  decided  there  directly  curity,  which  he  failed  to  do;  the 
applicable  to  the  present  question,  money  remained;  and,  it  was  said, 
Tazewell  owed  money  to  Bland,  by  died  in  the  sheriflf's  hands  by  depre- 
bond.  He  was  served  with  a  sub-  ciation.  Yet  he  was  decreed  to  pay 
poena  on  behalf  of  Bland's  execu-  interest.  In  all  such  cases,  I  think 
tors,  attaching  this  money  in  his  the  safe  and  sound  doctrine  is,  that 
hands.  After  this  service  he  re-  if  the  party,  though  restrained  from 
ceived  notice  that  the  bond  had  been  paying,  holds  and  uses  the  money 
assigned.  An  order  of  court  was  (and  we  must  presume  he  uses  if  he 
subsequently  served  on  him  to  re-  continues  to  hold  it),  he  ought  to 
strain  him  from  paying  the  money  pay  interest;  and  if  the  holder  does 
till  further  order.  It  was  five  or  six  not  think  so,  he  has  always  the 
years  before  tliis  order  was  dis-  privilege  of  bringing  the  money  into 
charged;  and  in  a  suit  by  the  as-  court;  and  because,  if  the  debtor 
signees  of  the  bond,  the  question  could,  under  the  restraining  process, 
was  whether,  during  this  time,  Taze-  hold  the  debt  for  j-ears  without  in- 
well  should  pay  interest.  The  court  terest,  it  would  offer  a  strong  temp- 
decided  that  he  should.  Judge  tation  to  him  to  stir  up  claims  of  tJiis 
Eoane  considered  the  principle  as  kind,  and  to  throw  all  possible  ob- 
settled  by  Hunter  v.  Spotswood,  1  stacles  in  the  way  of  a  decision  of 
Wash.  145,  where  a  sheriff  sold  at-  the  question  raised."  See  Ross  v. 
tached  effects,  under  an  order  of  Austin,  4  Hen.  &  Munf.  502. 
court,  directing  him  to  pay  the  iSee  Grunisli  v.  Standard  Sugar 
money  to  Himter  on  his  giving  se-  Refinery,  3  Low.  553. 


696  INTEREST. 

allowed  on  money  becoming  due  during  the  war  between 
enemies,  tlie  payment  of  which  could  not  be  made  by  reason  of 
such  suspension  of  commercial  intercourse,  because  the  debtor  is 
not  in  fault  for  the  delay  of  payment.^  On  a  bond  given  in  one 
of  the  American  states  to  a  British  creditor,  before  the  war  of 
the  revolution,  and  confiscated,  it  was  held  that  the  creditor 
was  not  entitled  to  interest  except  from  the  time  the  debt  was 
demanded  after  the  treaty  of  peace ;  but  it  was  held  that  it 
ought  to  be  disclosed  by  plea  that  the  creditor  was  beyond  sea, 
and  that  the  debtor  had  always  been  ready  since  the  treaty  ta 
pay,  and  is  now  ready ;  in  veriJBcation  of  which,  he  should  pay 
the  money  into  court.^ 

Interest  on  loans  made  previous  to,  and  maturing  after,  the 
commencement  of  the  war,  ceased  to  run  during  the  subsequent 
continuance  of  the  war,  although  interest  was  stipulated  for  in 
the  contract.^  But  interest  which  accrued  during  the  war  of 
the  revolution  on  a  bond  to  a  citizen  of  Maryland  by  a  principal 
and  surety,  the  former  a  British  subject  and  the  latter  a  citizen 
of  that  state,  was  held  to  be  recoverable  in  an  action  against 
the  surety.*  The  rule  that  interest  is  not  recoverable  between 
alien  enemies  during  a  war  of  their  respective  countries,  is  held 
to  be  applicable  to  debts  between  citizens  of  states  in  rebelhon 
and  citizens  of  states  adhering  to  the  national  government  in 
the  late  civil  war;  but  that  it  can  onl}^  apply  when  the  money 
was  to  be  paid  to  the  belligerent  directly.^  It  cannot  apply  when 
there  is  a  known  agent  appointed  to  receive  the  money,  resident 
within  the  same  jurisdiction  with  the  debtor;  in  such  a  case  the 
debt  will  draw  interest.^ 

Tender  stops  interest. —  Tender  has  been  considered  in  a 
broader  sense  in  another  connection.''     It  is  only  needful  here  to 

iBean    v.  Chapman,  62  Ala.    58;  ^Paul  v.  Christie,  4  Har.  &  McH. 

Brewer  v.  Hartie,  3  Call,  21;  Dunis-  161;  Bean  v.  Chapman,  supra. 

ton  V.  Imbrie,  3  Wash.  C.  C.  396;  ^piUow  v.    Brown,    26  Ark.    240; 

Birdley  v.  Eden,  3  Har.  &  McHen.  Ward  t.  Smith,  7  Wall.  447;  Lush  v. 

167.     See  id.  20,  140.  Lambert,    15  Minn.   416;    Bigler  v. 

2  Anonymous,  Martin  &  Hayw.  L.  Waller,  Chase,  Dec.  316;  Brown  v» 
&  Eq.  363.    See  Sheppard  v.  Taylor,  5  Hiatts,  15  Wall.  177. 

Pet.  675;  Selden  v.  Preston,  11  Bush,         6  Ward  v.  Smith,  7  Wall.  447. 
191.  ''See  ante,  p.  443. 

3  Brown  v.   Hiatts,  15  Wall.  177; 
Lush  V.  Lambert,  15  Minn.  416. 


SUSPENSION    OF   INTEREST.  697 

explain  wlien  admissible,  in  what  it  consists,  and  its  effect  to 
stop  interest.  The  theory  of  charging  interest  after  a  debt  is 
due,  and  ought  to  be  paid,  is  that  the  debtor  is  in  default ;  that 
he  might  voluntarily  pay  the  debt,  and  should  be  charged  with 
interest  because  he  does  not,  but  withholds  the  money  without 
the  creditor's  consent ;  hence  a  tender,  being  an  offer  of  payment, 
has  the  effect  of  preventing  all  the  consequences  of  the  default ; 
it  stops  interest  and  protects  the  party  against  costs ;  for,  if  the 
tender  is  refused,  it  is  not  his,  but  the  creditor's  fault  that  the 
debt  remains  unpaid.^ 

The  tender  and  refusal  only  causes  a  suspension  of  interest, 
and  exempts  the  debtor  from  costs.  Where  the  maker  of  a 
promissory  note  paid  money  into  the  hands  of  an  agent  to  se- 
cure it,  and  the  agent  tendered  the  money  to  the  holder  of  the 
note,  on  condition  of  having  it  dehvered  up,  the  note  being 
mislaid,  this  condition  was  not  complied  with ;  and  the  agent 
afterwards  became  bankrupt  with  the  money  in  his  hands. 
Held,  that  the  maker  was  still  responsible  on  the  note,  but  the 
interest  was  not  recoverable  after  the  time  of  the  tender.^ 

A     TENDEE     NOT     ALLOWED      FOR     UNLIQUIDATED     DAMAGES. 'A 

tender  can  only  be  made  of  a  debt  which  is  certain  in  amount ; 
it  is  not  available  at  common  law  where  the  demand  consists  of 
unliquidated  damages.*  The  debt  must  also  be  certain  to  justify 
interest  by  reason  of  the  debtor's  default.  The  theory  of  the 
law  is  that  the  debtor  is  able,  by  his  own  voluntary  act,  to  pre- 
vent such  interest.  His  act  can  never  be  more  than  a  tender, 
Avithout  the  concurring  act  of  the  creditor  in  accepting  the 
money.     A  tender,   however,   being   all    the   debtor  can   do 

iPaterson  v.  Sharp,  41   Cal.  133;  Mohn  v.  Stoner,  11  id.  80;  Hayward 
Raymond  v.  Beamard,  13  John.  274;  v.    Munger,    14  id.   516;    Dooley  v. 
Jackson  v.  Law,  5  Cow.  248;  Wood-  Smitli,  13  Wall.  604. 
ruff     V.    Trapnall,     12     Ark.     640;         2 Dent  v.  Dunn,  3  Camp.  290. 
Wheeler  v.   Woodward,   66  Pa.  St.         3  Cilley  v.   Hawkins,   48  111.    308; 
158:   Dixon  v.    Clark,   5   C.   B.  365;  Gregory  v.  Wells,  62  id.  233 ;  Dearie 
Waistell  v,    Atkinson,  8  Bing.  289;  v.  Barrett,  2  A.  &  E.  82;   Green  v. 
Carley    v.    Vance,     17     Mass.    389;  Shurtliff.    19  Vt.   592;    Dunning  v. 
Cornell  v.    Green,    10  S.   &  R.    14;  Humphrey,  24  Wend.  31.     See  Mc- 
Johnson  v.  Triggs,  4  G.  Greene,  97;  Do  well  v.  Keller,  4  Cold.  358;   Hop- 
Freeman  V.   Fleming,  5  Iowa,  460;  son  v.  Fountain,  5  Humph.  140. 
Shont    V.    Southern,     10     id.     415; 


698  J,  INTEKEST. 

towards  performance  of  the  promise  to  pay,  it  has  the  effect 
of  preventing  damages  for  non-performance.  On  principle,  a 
party  should  have  a  right  by  tender  to  prevent  default,  where- 
ever  in  the  absence  of  such  tender  interest  would  be  chargeable 
on  the  ground  of  default.^ 

When  a  tender  may  ee  made. —  A  tender  is  the  offer  of 
performance  by  a  party  who  is  under  a  contract  obligation  to 
pay  money.  The  tender  to  prevent  interest  altogether  should 
be  made  on  the  day  the  money  becomes  due ;  the  offer  is  then, 
of  the  very  thing  promised,  and,  if  accepted,  there  is  a  specific 
performance  of  the  contract.  In  Massachusetts,  a  tender  after- 
wards could  not  be  pleaded,  and  was  unavailing  as  a  defense  to 
the  action  until  changed  by  statute.^  And  this  is  the  doctrine 
of  the  English  courts.  There  it  is  said,  a  plea  of  tender  is  in 
truth  a  plea  of  performance  of  the  contract  as  far  as  the  party 
contracting  can  perform ;  and  where  money  is  to  be  paid,  the 
debtor  cannot  pay  it  unless  the  creditor  will  receive  it.  A 
tender,  therefore,  at  the  time  it  is  due,  is  sufficient  because  it  is 
payment  so  far  as  the  debtor  can  pay,  but  a  tender  afterwards 
is  too  late.'  ]S[othing  can  discharge  a  covenant  to  pay  on  a 
certain  day,  but  actual  payment;  acceptance  afterwards  may 
have  the  effect  of  discharo-e  as  accord  and  satisfaction.'* 


"to^ 


But  neither  in  England  nor  Massachusetts  is  a  tender  of  the 
debt,  after  it  is  due,  without  effect.     The  denial  of  the  right  to 

1  In  Dearie  v.  Barrett,  2  A.  &  El.  cases  where  the  party  pleading  it  has 
83,  it  is  assumed,  or  referred  to  as  never  been  guilty  of  any  breach  of 
true,  that  a  teiider  is  pleadable  to  a  his  contract;  and  we  cannot  suffer 
quantum  meruit.  See  note  h  to  the  new  form  of  pleading  to  be  in- 
this  case.  troduced  different  from  that  which 

2  City  Bank  v.  Cutler,  3  Pick.  414;  has  always  prevailed  in  this  case. 
Suffolk  Bank  v.  Worcester  R.  R.  Co.  The  damages,  indeed,  have  some- 
5  id.  106;  Dewey  v.  Humphrey,  id.  times  varied,  as  the  rate  of  interest 
187;  Maynard  v.  Kuut,  id.  240;  Fra-  has  been  changed.  And  though  the 
zier  V.  Cushman,  12  Mass.  277.  court  have  adopted  the  practice  of 

3  Dobie  V.  Larkan,  10  Exch.  776.  referring  it  to  their  officers  to  com- 

4  Poole  V.  Tunbridge,  2  M.  &  W.  pute  principal  and  interest  on  bills 
223.  In  this  case,  Johnson  v.  Clay,  of  exchange,  instead  of  sending  it 
7  Taunt.  488,  is  doubted.  In  Huiue  to  a  jury  to  make  the  same  compu- 
V.  Peploe,  8  East,  168,  Lord  Ellen-  tation;  yet  it  is  a  matter  always  in 
borough,  C.  J.,  said:  "  In  strictness,  a  the  discretion  of  the  court,  and  not 
plea  of  tender  is  aj)plicable  only  to  to  be  obtained  without  motion." 


SUSPENSION   OF   INTEREST.  699 

plead  such  a  tender  is  teclmical,  and  the  benefit  of  it  is  afforded 
in  another  way.  The  tender,  or  even  an  offer  to  pay  without 
going  far  enough  to  constitute  a  tender,  may  so  negative  default 
as  to  take  away  the  right  to  damages,  or  any  penalty  for  deten- 
tion of  the  money.  A  bank  was  by  statute  subjected  to 
additional  damages  at  the  rate  of  twenty-four  per  cent,  per 
annum  for  the  time  it  should  refuse  or  delay  payment ;  and 
demand  for  payment  of  a  large  sum  for  its  bills  was  made, 
which  was  partially  compHed  with ;  but  the  amount  required 
exceeding  the  specie  in  the  vaults  of  the  bank,  there  was  a 
deficiency  in  the  payment,  which  was  tendered  after  suit 
brought,  on  the  day  after  the  demand,  and  an  additional  sum 
for  interest  and  costs.  This  tender  was  refused ;  after  which 
the  money  was  deposited  in  another  bank,  subject  to  the  order 
of  the  creditor,  and  notice  thereof  given  to  such  creditor. 
Under  a  rule  of  the  trial  court,  the  money  was  brought  into 
court  and  taken  by  the  plaintiffs.  The  court,  by  Parker,  C  J., 
said :  "  The  tender,  though  not  technically  good  as  a  defense, 
is  a  legal  and  equitable  shield  against  the  just  but  severe  penalty 
for  neglecting  and  refusing  to  redeem  their  bills,  from  the  time 
when  they  would  have  redeemed  them  but  for  the  refusal  of 
the  other  party  to  receive.  We  think,  too,  that  the  plaintrffs 
ought  not  to  recover  even  simple  interest  after  they  might  have 
received  their  money,  and  refused,  under  the  circumstances  of 
this  case.  The  bank  bills  or  notes  sued  were  promises  to  pay 
money  on  demand,  without  any  engagement  to  pay  interest. 
Interest  was  no  part  of  the  contract ;  but  after  demand  and 
non-payment,  interest  would  be  recovered  in  the  form  of  dam- 
ages for  detention.  This  claim  of  damages  might  be  answered 
before  a  jury,  by  proving  that  it  was  the  fault  of  the  plaintiffs 
themselves  that  they  had  not  received  their  debt,  and  that  the 
money  had  been  placed  subject  to  their  order,  so  that  the  debtor 
could  not  put  it  to  profitable  use.  If  there  were  any  question 
about  the  amount  due,  the  case  might  be  different ;  but  where 
the  sum  is  certain,  and  the  creditor  refuses  to  receive  the  debt, 
which  is  not,  by  the  terms  of  the  contract,  on  interest,  and  the 
debtor  deprives  himself  of  the  use  of  the  money,  putting  it 
under  the  control  of  the  creditor  without  any  condition,  we 


'TOO 


INTEREST. 


can  see  no  j^rinciple  of  law  or  justice  which  will  oblige  the 
debtor  to  pay  interest  subsequentl3\"  ^     It  has  also  been  held 


1  Suffolk  Bank  v.  Worcester  Bank, 
5  Pick.  1U6.  The  learned  chief  jus- 
tice cites  the  practice  in  England  in 
support  of  the  exemption  of  the 
debtor  from  liability  to  pay  interest 
in  such  cases.  Referring  to  Dent  v. 
Dunn,  3  Camp.  296,  he  says:  "The 
action  was  brought  by  Dent  against 
the  executrix  of  Dunn,  on  two 
promissory  notes  given  by  the  tes- 
tator in  his  life  time.  It  appeared 
that,  after  his  death,  his  executrix 
had  given  her  agent  a  sum  sufficient 
to  take  up  the  notes.  The  agent 
offered  to  pay  the  principal  and  in- 
terest on  having  the  notes  delivered 
up  to  him,  but  they  were  mislaid, 
and  so  the  money  was  not  paid.  The 
agent  failed  with  the  money  in  his 
hands.  Afterwards  the  notes  were 
found  and  the  action  brought.  These 
facts  were  relied  ujion  in  defense  of 
the  action,  but  not  admitted  as  such. 
A  question  then  arose,  to  what  time 
the  interest  should  be  made  up. 
Lord  EUeuborough  said  he  thought 
interest  ought  to  be  stopped  from 
the  time  of  the  offer  to  -pay.  Interest, 
he  said,  is  a  compensation  agreed  to 
be  paid  for  the  use  of  money  forborne 
by  the  lender  at  the  borrower's  re- 
quest. It  is  more  frequently  recov- 
ered in  the  shape  of  damages  for 
money  improperly  detained  by  the 
debtor,  contrary  to  the  request  of 
the  creditor.  But  in  neither  of  these 
ways  can  interest  run  after  an  offer 
to  pay  the  principal  upon  a  reason- 
able condition,  which  the  party  to 
receive  refuses,  or  is  not  in  a  situ- 
ation to  fulfil.  And  a  verdict  was 
taken  for  the  principal  and  intei'est 
down  to  the  tender.  Here,  it  will 
be  observed,  was  no  legal  tender. 
The  offer  to  pay  was  after  the  notes 


had  become  due,  and  a  condition 
was  insisted  on,  which,  however 
reasonable,  ■would  haA'e  rendered  the 
offer  nugatory  as  a  tender;  but  yet 
it  had  its  effect,  because  the  money 
was  not  unlawfully  detained,  but  it 
was  the  negligence  of  the  plaintiff 
in  regard  to  the  notes  which  pre- 
vented the  payment. 

"So,  in  the  case  before  us  there 
was  no  legal  tender,  but  an  offer  to 
pay  the  monej^  on  the  same  day  that 
the  action  was  commenced,  together 
with  a  surplus  sufficient  to  cover  the 
interest  or  penalty  which  had  ac- 
crued, and  upon  the  refusal  to 
receive,  the  money  was  deposited  in 
a  bank  for  their  use,  with  a  notice 
that  they  might  at  any  time  draw  it 
out.  The  case  is  more  favorable  for 
the  defendants  than  the  one  cited, 
and  it  differs  also  in  this,  that  there 
was  no  contract  for  interest;  so  that 
it  could  be  recovered  only  as 
damages  for  improper  detention. 
Whereas,  in  the  case  cited,  the. 
promissory  notes  themselves  were, 
without  doubt,  upon  interest,  it 
being  stated  that  the  off'er  by  the 
agent  was  to  pay  the  principal  and 
interest.  There,  too,  the  money  was 
lost,  so  that  the  payment  of  the 
principal  itself  was  disputed.  Here 
the  principal  and  interest  due  at  the 
time  of  the  offer,  and  the  costs 
which  had  acciTied,  were  at  all 
times  after  the  offer  at  the  disposal 
of  the  plaintiffs. 

"  The  court  of  common  jileas  in 
England  have  adopted  the  same  just 
principle,  and  applied  it  more  ex- 
tensively; as  appears  by  the  case  of 
Zeevin  v.  Cowell,  2  Taunt.  202.  The 
case  was,  that  after  the  action  was 
commenced,  and  before  the  declara- 


SLSri;X&lUN   OF   ixtekest. 


roi 


in  Kentucky,  that  a  tender  after  tke  day  fixed  for  payment  is 


not  good.^ 


tion  was  made  out.  the  defendant 
offered  to  pay  the  debt  and  costs, 
which  the  plaintiff  refused  to  take, 
and  proceeded  to  make  out  his 
declaration.  The  motion  was  that 
the  defendant  should  be  permitted 
to  pay  into  court  the  debt  and  costs 
up  to  the  time  of  the  offer  to  pay; 
\rhich  was  allowed,  and  the  plaintiff 
was  made  to  pay  the  costs  of  the 
application  and  all  subsequent  costs. 
And  in  the  case  of  Roberts  v.  Lam- 
bert, 2  Taunt.  283,  the  same  order 
was  made.  This  rule  is  exceedingly 
just,  as  it  goes  to  repress  the  spirit 
of  litigation,  and  punishes  the  party' 
for  his  vexatious  proceedings.  These 
cases  fully  justify  us  in  the  conclu-^ 
sion  we  have  come  to  in  the  present 
case,  that  the  money  brought  in 
under  the  rule  was  sufficient ;  which 
having  been  taken  out  by  the 
plaintiffs,  judgment  must  be  for  the 
defendants  for  costs  after  that 
time."  Golf  v.  Rechoboth,  2  Cush. 
475.  See  Jeter  v.  Littlejohn,  3 
Muiph.  186;  CorneU  v.  Green,  10  S. 
&  R.  14. 

The  statute  of  3  and  4  W.  4,  c.  43, 
§  21,  enacts:  ''  That  it  shall  be  lawful 
for  the  defendant  in  all  personal  ac- 
tions (with  certain  exceptions),  by 
leave  of  any  of  the  said  superior 
courts  where  such  action  is  pending, 
or  a  judge  of  any  of  said  superior 
courts,  to  pay  into  court  a  sum  of 
money,  by  way  of  compensation  or 
amends,  in  such  action  and  under 
such  regulations  as  to  the  payment 
of  costs  and  the  form  of  pleading, 
as  the  said  judges,  or  such  eight  or 
more  of  them  as  aforesaid,  shall,  by 
any  rule  or  orders  by  them  to  be 
from  time  to  time  made,  order  and 
direct." 

1  Huston  V.  Noble,  4  J.  J.  Marsh. 


130.  See  Gould  v.  Banks,  8  Wend. 
562;  Day  v.  Lafferty,  4  Ark.  450.  In 
Dixon  V.  Clark,  5  C.  B.  365,  Wilde, 
C.  J.,  said:  "In  actions  of  debt  and 
assumpsit,  the  principle  of  the  plea 
of  tender,  in  our  apprehension,  is, 
that  the  defendant  has  been  always 
ready  (toujour s  prist)  to  perform  en- 
tirely the  contract  on  which  the  ac- 
tion is  founded;  and  that  he  did 
perform  it,  as  far  as  he  was  able,  by 
tendering  the  requisite  money:  the 
plaintiff  himself  precluding  a  com- 
plete performance,  by  refusing  to 
receive  it.  And,  as,  in  ordinary  cases, 
the  debt  is  not  discharged  by  such 
tender  and  refusal,  the  plea  must 
not  only  go  on  to  allege  that  the  de- 
fendant is  still  ready  {uncore  prist), 
but  must  be  accompanied  by  apro- 
fert  in  curiam  of  the  money  ten- 
dered. If  the  defendant  can  main- 
tain this  plea,  although  he  will  not 
thereby  bar  the  debt  (for  that  would 
be  inconsistent  with  the  uncore prist, 
and  profert  in  curiam);  yet  he  wiil 
answer  the  action,  in  the  sense  that 
he  will  recover  judgment  for  his 
costs  of  defense  against  the  plaint- 
iff,—  in  which  respect  the  plea  of 
tender  is  essentially  different  from 
that  of  paj-ment  of  money  into 
court.  And,  aa  the  plea  is  thus  to 
constitute  an  answer  to  the  action, 
it  must,  we  conceive,  be  deficient  in 
none  of  the  requisite  qualities  of  a 
good  plea  in  bar.  With  respect  to 
the  averment  of  toujours  prist,  if 
the  plaintiff  can  falsify  it,  he  avoids 
the  plea  altogether.  Therefore,  if 
lie  can  show  that  an  entire  perform- 
ance of  the  contract  was  demanded 
and  refused,  at  any  time,  when,  by 
the  terms  of  it,  he  had  a  right  to 
make  such  a  demand,  he  will  avoid 
the  plea.     Hence,  if  a  demand  of  the 


702 


INTEREST. 


After  a  debt  lias  become  due,  an  action  accrues  for  the 
recovery  of  damages ;  the  whole  demand  is  one  for  the  recov- 
ery of  damages,  given  by  law  for  failure  to  perform  the  con- 


whole  sum  originally  due,  is  made 
and  refused,  a  subsequent  tender  of 
part  of  it,  is  bad,  notwithstanding 
that,  by  part  payment,  or  by  other 
means,  the  debt  may  have  been  re- 
duced, in  the  interim,  to  the  sum  ten- 
dered. And  this  is  the  principle  of 
the  decision  of  Cotton  v.  Godwin,  7 
M.  &  W.147.  If,  however,  the  demand 
were  of  a  larger  sum  than  that  orig- 
inally due  under  the  contract,  a  re- 
fusal to  pay  it  would  not  falsify  the 
toujour s  prist,  even  though  the 
amount  demanded  were  made  up  of 
the  sum  due  under  the  contract,  and 
some  other  debt  due  from  the  de- 
fendant to  the  plaintiff.  And  this  is 
the  principle  of  the  decisions  of 
Brandon  v.  Newington,  3  Q.  B.  915, 
and  Hesketh  v.  Fawcett,  11  M.  &  W. 
856,  which  appear  to  overrule  Tyler 
V.  Bland,  9  M.  &  W.  338. 

•'This  principle,  hovsrever,  we 
think,  is  only  applicable  where  the 
larger  sum  is  demanded,  generally, 
and  can  hardly  be  enforced  where  it 
is  explained  to  the  defendant  at  the 
time,  how  the  amount  demanded  is 
made  up;  for,  in  such  case,  the 
transaction  appears  to  be  nothing 
less  than  a  simidtaneous  demand  of 
the  several  debts,  so  as  to  falsify  the 
averment  of  toujours prist  as  to  each. 
But,  besides  the  averment  of  readi- 
ness to  perform,  the  plea  must  aver 
an  actual  performance  of  the  entire 
contract  on  the  part  of  the  defend- 
ant, as  far  as  the  plaintiff  would  al- 
low. And  it  is  plain  that,  where, 
by  the  terms  of  it,  the  money  is  to 
be  paid  on  a  future  day  certain,  this 
branch  of  the  plea  can  only  be  satis- 
fied by  alleging  a  tender  on  the  very 
day.  And  this  is  the  principle  of  the 
decisions  of  Hume  v.  Peploe,  8  East, 


168,  and  Poole  v.  Tumbridge,  2  M.  & 
W.  223.  It  is  also  obvious  that  the  de- 
fect in  the  i>lea  in  this  respect  can- 
not be  remedied  by  resorting  to  the 
previous  averment  of  toujours  prist. 
Consequently,  a  plea  by  the  acceptor 
of  a  bill,  or  the  maker  of  a  note,  of 
a  tender  xiost  diem,  is  bad,  notwith- 
standing the  tender  is  of  the  amount 
of  the  bill  or  note,  with  interest  from 
the  day  it  became  due  up  to  the 
day  of  the  tender,  and  notwithstand- 
ing the  plea  alleges  that  the  defend- 
ant was  always  ready  to  pay,  not 
only  from  the  time  of  the  tender 
(as  the  plea  was  in  Hume  v.  Peploe), 
but  also  from  the  time  when  the  bill 
or  note  became  payable.  On  the 
same  reasoning,  it  appears  to  us, 
tliat  this  branch  of  the  plea  can  only 
be  satisfied  by  alleging  a  tender  of 
the  whole  sum  due  under  the  con- 
tract, for  that  a  tender  of  a  part  of 
it  only  is  no  averment  that  the  de- 
fendant performed  the  whole  con- 
tract as  far  as  the  plaintiff  would 
allow.  If  it  be  said  that  the  jDlea  of 
tender  is,  in  effect,  only  in  preclusion 
of  damages  subsequent  to  the  ten- 
der, and  that  it  would  be  unjust  to 
give  the  plaintiff  those  damages 
which  have  been  incurred,  merely 
in  consequence  of  his  refusal  to  re- 
ceive the  money  tendered,  the 
answer  is,  that  the  same  argument 
might  be  applied  to  the  instance  of 
the  tenderposf  diem  of  the  amount  of 
a  bill  or  note,  with  the  interest  then 
due;  but  that,  in  each  case,  the  de- 
fendant is  unable  to  allege  that  he 
has  i^erformed  the  terms  of  his  con- 
tract, as  far  as  the  plaintiff  would 
allow  him,  and  is,  therefore,  dis- 
abled from  pleading  a  tender." 


SUSPENSION   OF   LNTEKEST.  703 

tract.  A  tender,  then,  is  not  an  ofier  of  strict  performance, 
but  of  the  damages ;  a  tender  of  the  full  amount  to  which  the 
creditor  is  entitled,  if  received,  is  accord  and  satisfaction ;  but 
since  the  damages  are  certain  in  amount,  consisting  of  the  debt 
and  interest,  the  general  American  doctrine  is  that  a  tender 
may  be  made  after  the  debt  is  due,  and  may  be  pleaded  as  such. 
To  be  sufficient,  however,  it  must  include  the  interest  up  to  the 
date  of  the  tender,'  In  cases  of  promises  to  pay  in  chattels  or 
in  paper  money  of  fluctuating  value,  a  tender  in  kind,  of  the 
thing  stipulated  to  be  paid,  to  be  effectual,  can  only  be  made 
on  the  day  appointed  for  payment.^  It  is  only  upon  debts  due 
that  a  tender  wiU  stop  interest ;  a  tender  of  money  to  pay  a 
debt,  bearing  interest,  before  it  is  due,  will  not  have  that  effect.^ 
The  creditor  has  a  right  to  keep  his  mone}^  at  interest  accord- 
ing to  the  contract.*  In  a  "Wisconsin  case  the  question  arose 
whether  a  tender  can  be  made  before  an  interest-bearing  debt 
becomes  due  by  tendering  interest  also  to  the  maturity  of  the 
debt.  The  court  remarked  that  the  question  was  somewhat 
novel  in  its  character,  and  upon  which  authorities  are  not 
numerous,  owing  doubtless  to  the  rarity  of  the  occurrence  as 
matter  of  fact.  It  is  seldom,  at  least  in  modern  times,  that  the 
debtor  offei's  to  pay  before  the  debt  is  due,  including  interest  up 
to  the  time  the  debt  is  due ;  still  more  seldom,  such  offer  being 
made,  that  the  creditor  refuses  it.  The  two  Massachusetts  cases 
seem  to  rest  the  decision  upon  the  right  of  the  creditor  to  keep 
his  money  at  interest,  according  to  the  contract.  But  where 
the  debtor  tenders  the  whole  amount  of  the  interest  which 
could  accrue  up  to  the  time  of  payment  fixed  by  the  contract, 
this  reason  would  seem  to  fail.  But  can  it  not  be  said  that  the 
creditor  may  have  an  interest  in  keeping  his  money  invested, 
upon  security,  rather  than  to  have  it  in  his  own  hands  ?  Can  it 
not  be  said  that  he  may  insist  on  it,  even  arbitrarily  or  obsti- 

1  Tracy  v.   Strong,    2  Conn.    659;  2powe  v.  Powe,  42  Ala.  113;  Toul- 

Stadwell  v.   Cooke,   38  Conn.    549;  min  v.  Sager,  id,  127, 

Ashburn  t.  Poulter,  35   Conn.    553;  3  Ellis   v,    Craig,    7    John.    Ch,   7; 

Patterson  V.  Sharp,  41  Cal.  133;  Ha-  Mitchell  v.  Cook,  29  Barb,  243. 

man  v.  Dimmick,  14  Ind,  105;  Liv-  4 Id.;  Saunders  v.    Frost,  5  Pick, 

ingston  v,  Harrison,  2  E.  D.  Smith,  259,   206;    Kingman    v.    Pierce,    17 

197;  Rudulph  v.   Wagner,   36  Ala,  Mass,  247. 
698,    See  2  Pars,  on  Cont.  642,  note  e. 


704  INTEREST. 

nately,  and  without  advantage  to  himself,  so  long  as  the  con- 
tract provides  for?  It  would  seem  so,  unless  the  rule  of  the 
civil  law  is  to  prevail,  which  was  that  the  day  of  payment  was 
fixed  for  the  convenience  of  the  debtor  only ;  that  he  might  not 
be  compelled  to  pay  before  that  time,  leaving  him  at  liberty, 
however,  to  do  so  if  he  chose.^  A  tender  sliould  be  made  be- 
fore suit  brought,  though  it  may  be  made  after  the  creditor  has 
directed  suit  to  be  brouglit,^  and  even  taken  the  initiatory 
steps.^  But  under  a  rule  of  court  the  defendant  may  pay  into 
court  the  amount  he  acknowledges  to  be  due.^ 

The  law  of  tender  has  been  more  or  less  regulated  by  statute 
in  nearly  all  of  the  states,  and  is  generally  allowed  after  suit 
commenced ;  but  when  so  made,  the  costs  that  have  accrued  up 
to  the  time  of  the  tender  must  also  be  tendered.^  The  tender 
may  be  made  generally  for  the  debt,  interest  and  costs ;  and  will 
be  sufficient  if  the  amount  is  larej'e  enoufi:h:  but  a  tender  for 
the  debt,  not  mentioning  costs,  will  not  be  good,  though  the 
plaintiff  recover  no  more  than  is  paid  into  court ;  for  tenders , 
are  stricti  J2ir{s.^  If,  at  the  time  of  the  tender,  the  debtor  has 
no  knowledge  of  the  commencement  of  a  suit,  and  the  creditor 
do  not  inform  him  thereof,  nor  make  any  claim  of  costs,  but 
refuses  to  accept  the  amount  tendered  solely  on  account  of  its 
insufficiency  to  pay  the  delt,  it  may  be  regarded  as  a  Avaiver  of 
all  claim  for  costs."  After  judgment,  the  only  way  to  make  a 
tender  effectual  is  to  bring  the  money  into  court,  and  move  for 
and  obtain  a  rule  to  enter  satisfaction  upon  the  record.^  But 
where  a  defendant,  on  being  taken  on  execution  under  a  ca. 
sa.,  tendered  the  debt  and  costs  to  the  plaintiff's  attorney,  and 
required  him  to  sign  his  discharge,  which  such   attorney  re- 


1  Moore  v.  Cord,  14  Wis.  213.  See  4  Murray  v.  Windley,  7  Ired.  201. 
McHard  v.  Whetcroft,  3  Har.  &  5  Freeman  v.  Fleming,  5  Iowa, 
McH.  83;  2  Par.  on  Cont.  642;  Tillon  460;  Emerson  v.  White,  10  Gray,  351. 
V.  Britton,  9  N.  J,  L.  120.  e  Shotwell  v.    Denman,  Coxe   (N. 

2  Hubbard  v,  Chenango  Bank,  8  J.  L.),  174;  State  Bank  v.  Holcomb, 
Cow.  88;  Fishburne  v.  Sanders,  1  7  N.  J.  L.  193.  See  Gammon  v. 
Nott.    &  McC.  242;    Winningham  v.  Stone,  1  Ves.  Sr.  339. 

Redding,  6  Jones' L.  125.  'Haskell  v.  Brewer,   11   Me.   258; 

3  Knight  V.   Beach,  7  Abb.  N.  S.  Hull  v.  Peters,  7  Barb.  331. 
241;  Retan  v.  Drew,  19  Wend.  304;  « Jackson  v.  Law,  5  Cow.  248. 
Bennett  v.  Bayes,  5  H.  &  N.  391. 


PLEADLNO. 


ro5 


fused  to  do  until  such  debtor  had  paid  an  independent  collateral 
demand  for  costs,  it  was  held  that  the  plaintiff  and  his  attorney 
were  liable  to  an  action  on  the  case  for  such  refusal.^ 


Section  10. 


PLEADING. 


How  interest  must  he  claimed  in  pleading. 
How   IXTEEEST   MUST  BE   CLAIMED   EST .  PLEADING. It    is    a    rujc 

of  pleading  that  those  damages  which  are  implied  by  law,  or 
necessarily  result  from  the  facts  stated  as  the  cause  of  action, 
need  not  be  specially  declared  for.^  Under  this  rule,  interest  at 
the  legal  rate  which  may  be  claimed  as  damages  for  non- 
payment of  money  when  due,  may  be  recovered  without  being 
specially  claimed  in  pleading.'     If  the  action  is  brought  upon 


1  Crozer  v.  PiUing,  6  D.  &  R.  129. 

2  See  post,  tit.  Pleading. 

3  Tucker  v.  Page,  69  111.  179;  Mc- 
Connell  v.  Thomas,  3  HI.  313;  Wash- 
ington V.  Planters'  Bank,  1  How. 
(Miss.)  230.  But  when  interest  is 
included  in  the  agreement,  it  is  part 
of  the  debt  agreed  to  be  paid,  and 
the  interest  promise  and  its  breach 
must  be  alleged. 

In  Chinn  v.  Hapiilton,  Hemps.  C. 
C.  438,  debt  was  brought  on  a  prom- 
issoiy  note  for  $3,919.53.  to  be  paid 
one  day  after  date,  with  interest  at 
ten  per  cent,  from  date  until  final 
payment.  In  the  declaration  the 
plaintiff  dem"knded  the  sum  of 
$3,919.53,  and  assigned  as  a  breach 
the  non-payment  of  that  sum,  made 
no  averment  in  relation  to  the  inter- 
est, and  concluded  the  breach  in 
these  words:  "  to  the  damage  of  the 
plaintiff,  $3,000."  And  the  court 
say:  "  In  actions  upon  obligations, 
or  promissory  notes  for  the  payment 
of  money,  containing  no  stipulation 
in  regard  to  interest,  it  has  not  been 
deemed  necessary  to  demand  in  the 
Vol.  1-^45 


declaration,  the  interest  that  may  be 
due,  nor  to  negative  its  payment  in 
the  assignment  of  breaches.  The 
uniform  and  settled  practice  is  to 
declare  for  the  debt  alone,  and  inter- 
est is  recovered  as  damages  for  its 
detention.  Upon  the  failure  to  pay 
money  at  the  time  it  is  due,  the 
creditor  is  justly  and  legally  entitled 
to  be  remunerated  by  the  debtor, 
for  the  damages  he  has  sustained 
by  the  fault  of  tlie  debtor.  The  law 
has  declared  the  amount  of  these 
damages,  and  fixed  them  at  the  rate 
of  six  per  cent,  per  annum,  and  al- 
lowed the  parties  to  the  contract  to. 
vary  this  rate;  so  that  in  no  case 
shaU  it  exceed  the  rate  of  ten  per 
cent,  per  annum  upon  the  amount 
loaned  or  withheld.  In  lieu  of  the 
damages  that  the  creditor  would  be 
entitled  to  recover  for  the  unjust 
detention  of  the  debt,  the  law  has 
given  interest;  and  although  the  law 
denominates  it  interest,  it  is  in  fact 
the  damages  which  the  creditor  has 
sustained.  He  is  therefore  always 
allowed  to  recover  the  interest  due 


'TOG 


INTEEEST. 


an  express  promise  to  pay  money,  and  the  contract  set  out  in- 
cludes a  promise  to  pay  interest  at  a  given  rate,  which  it  is 
lawful  to  stipulate  for,  until  the  debt  is  paid,  a  general  breach 
with  an  ad  damnum  large  enough  to  cover  the  principal  and 
interest,  will  entitle  the  plaintiff  to  recover  interest  to  the  date 


at  the  rendition  of  the  judgment  as 
damages  for  the  detention  of  the 
debt. 

' '  But  in  cases  where  the  parties 
stipulate  in  the  contract  for  the  pay- 
ment of  interest  before  the  debt 
falls  due,  the  interest  cannot  be  re- 
garded in  the  light  of  damages,  but 
constitutes  a  part  of  the  contract 
itself. 

"  The  interest  in  this  case  accrues 
by  the  stipulations  of  the  contract, 
and  not  as  a  legal  consequence  of  a 
breach.  It  cannot  be  in  the  nature 
of  damages,  for  it  arises  before  any 
infraction  of  the  contract  or  failure 
to  perform  it.     .     .     . 

"The  promise  to  pay  the  debt, 
and  the  promise  to  pay  interest 
from  the  date  of  the  contract,  are 
two  separate  distinct  promises,  or 
undertakings;  one  maj^  be  performed 
without  performing  the  other.  In 
declaring  upon  a  covenant  or  a  parol 
contract  in  writing  containing  vari- 
ous undertakings,  the  plaintiff  has 
his  election  to  complain  of  the 
breach  of  one  or  of  all  of  the  cove- 
nants or  i^romises.  If  he  complains 
of  the  breach  or  the  non-performance 
of  one  only  of  the  covenants  or 
promises,  he  thereby  admits  that  the 
others  have  been  performed. 
^  "  The  intendment  is  to  be  made 
most  strongly  against  the  pleader, 
and  as  he  comijlains  of  the  breach 
of  only  one  of  the  covenants  or  ob- 
ligations, the  presumption  arises 
that  the  others  liave  been  performed. 
It,  at  all  events,  waives  any  right  of 
action  upon  them;  for,  having  sued 
.     upon  the  contract  once,  he  is  for- 


ever barred  from  suing  again.  It 
will  not  be  allowed  to  split  up  the 
various  coA'enants  or  promises  con- 
tained in  one  contract  and  sue  upon 
each  oi  them  —  he  can  have  but  one 
recovery  upon  one  contract,  which 
then  becomes  merged  in  the  judg- 
ment of  the  court. 

"  If  the  foregoing  remarks  are  well 
founded,  the  declaration  is  not  de- 
fective. Can  the  plaintiff  in  this 
case  recover  interest  after  the  debt 
becomes  due;  and  if  he  can,  at  what 
rate?  He  is  entitled  to  recover  in- 
terest, as  damages  for  the  detention 
of  the  money  after  it  became  due, 
and  where  the  contract  is  silent  the 
law  fixes  the  rate  at  six  per  cent, 
per  annum;  but  when  the  contract 
fixes  the  rate  of  interest  at  ten  per 
cent. ,  the  law  declares  that  to  be  the 
rate.  In  this  case,  the  contract  is 
set  out  in  the  declaration,  and  fixes 
the  rate  of  interest  at  ten  per  cent, 
per  annum;  consequently,  the  plaint- 
iff is  entitled  to  recover  interest  at 
the  rate  of  ten  per  cent,  per  annum. 
The  fact  that  the  parties  have  agreed 
upon  the  rate  of  interest  does  not 
change  the  nature  of  interest  after 
the  debt  becomes  due;  but  it  is  still 
justly  regai-ded  in  the  nature  of 
damages  for  the  failure  to  pay  at 
the  time  stipu.lated  by  the  parties." 

But  in  De  Groot  v.  Darby,  7  Rich. 
L.  130,  Whitner,  J.,  said:  "The 
plaintiff  claims  interest  in  this  case. 
The  action  was  for  goods  sold  and 
delivered.  The  declaration  contained 
no  count  for  interest,  and  although 
it  did  contain  the  usual  count  for 
money  had  and  received,  the  bill  of 


PLEADING. 


707 


of  the  judgment  at  the  contract  rate.^  It  has  been,  however, 
held  in  Alabama,  that,  in  general,  a  court  of  equity  will  not  de- 
cree interest  on  a  balance,  unless  it  is  specially  asked  for  in  the 


particulars,  we  are  infoi-med  in  the 
course  of  the  argument,  was  for 
goods  alone,  and  without  any  item 
for  interest.  It  cannot  be  said,  in 
the  ordinary  transaction  of  the  sale 
of  goods,  that  interest  is  an  incident 
of  the  contract  itself.  The  first  in- 
quiry is  whether  there  was  a  special 
agreement  to  pay  interest,  eo  nom- 
ine, or  to  do  something  towards  the 
payment  of  an  admitted  sum.  That 
Tvould  imply  a  promise;  for  in  no 
just  sense  can  it  be  maintained  that 
the  interest  constitutes  a  part  ot  the 
price  of  the  goods.  I  do  not  under- 
stand this  principle  to  be  drawn  into 
controvei'sy.  Cases  in  our  own  state 
are  numerous  in  reference  to  such 
contracts  as  carry  interest  with 
them.  Harp.  83;  1  Hill,  393;  3  Mc- 
Cord,  505;  2  Bailey,  894. 

"  The  mere  statement  of  such  a 
proposition,  it  would  seem,  discloses 
the  necessity  of  its  ajDpearance  in 
pleading  in  some  form.  The  verj- 
object  of  all  pleading  is  to  advertise 
the  party  sought  to  be  charged,  of 
the  matter  or  tiling  claimed.  Hence 
the  necessity  of  a  declaration;  and 
when,  according  to  our  forms  and 
the  nature  of  the  demand,  it  niiglit 
otherwise  be  too  general,  lience  the 
propriety  of  a  biU  of  particulars. 
The  law  abhors  surprise  and  undue 
advantage,  and  therefore  requires 
all  reasonable  certainty.  In  this  par- 
ticular case,  the  party  would  be 
AvhoUy  at  sea,  if  he  may  be  made 
liable  for  that  which  is  outside  of 
the  contract  set  forth,  wJiich  in  no 
way  springs  from  it  as  an  incident, 
which,  though  susceptible  of  alle- 
gation, is  neither  set  out  by  special 
count,  nor  notified  in  the  bill  of  pai*- 
ticulars.     Such  a  rule  would  be  o]> 


noxious  to  the  double  implication  of 
surprising  the  defendant  and  of  giv- 
ing to  the  plaintiff  what  he  has  not 
asked  for.  On  the  contrary,  that  is 
but  a  reasonable  rule  which  requires 
such  an  advertisement,  at  least,  as 
may  enable  the  parties  to  prepare  to 
meet  proof  by  proof,  that  the  truth 
may  be  known."  This  decision  is 
not  adverse  to  that  in  the  preceding 
case,  if  interest  by  agi'eement  was 
sought  to  be  recovered,  before  the 
account  was  due,  or  put  upon  inter- 
est by  demand  or  unreasonable  de- 
lay. But  if  it  is  deemed  necessary 
to  specifically  claim  interest  on  an 
account  after  it  is  due,  and  after  in- 
terest would  accrue  by  reason  of 
default  in  payment,  then  it  would 
seem  to  be  in  conflict  with  the  prin- 
ciple universally  recognized,  that 
those  damages  which  are  implied  I 
by  law  need  not  be  specially  claimed.  * 

The  true  distinction  is  pointed  out 
in  Adams  v.  Palmer,  30  Pa.  St.  346, 
where  it  was  held  that  where  a 
usage  of  trade  has  fixed  a  period  at 
which  book-accounts  bear  interest, 
this  becomes  a  law  of  the  contract, 
and  it  is  not  necessary  to  demand  it 
in  the  copy  of  the  claim  filed.  Ham- 
mel  V.  Brown,  13  Harris,  220;  Watts 
v.  Hock,  25  Pa.  St.  411.  If  a  bar- 
gain, however,  exists  for  interest  at 
an  earlier  period  than  the  usage 
would  allow,  or  if  a  special  contract 
be  relied  on  as  giving  it,  then  it 
must  be  set  forth  in  or  added  to  the 
copy  of  tlie  claim;  otherwise  the 
plaintiff  cannot  include  it  in  his 
judgment. 

1  Chinn  v.  Hamilton,  supra:  Mc- 
Gmnell  v.  Thomas,  3  111.  313.  In 
this  case  suit  was  upon  a  note  pay- 
able in  a  j'ear,  with  interest  at  the 


708  INTEEEST. 

bill ;  but  tills  rule  only  applies  to  interest  due  at  the  filing  of  the 
bill.  When  interest  accrues  subsequently,  it  is  the  practice  of 
the  court,  upon  further  directions,  to  order  that  the  interest  be 
computed,  although  there  is  no  prayer  in  the  bill  to  that  effect.^ 

But  as  interest  before  maturity  of  the  principal  is  the  creature 
of  contract,  no  case  can  be  made  for  the  recovery  of  such  inter- 
est without  alleging  the  contract  and  a  breach  of  it.^  A  de- 
mand for  principal  and  interest,  on  a  covenant  to  pay  a  specific 
sum,  with  interest,  is  di^asible.^ 

Under  the  code,  an  office  judgment  in  case  of  a  failure  to  an- 
swer is  authorized  to  be  taken  for  the  amount  specified  in  the 
summons ;  if  an  answer  is  filed,  judgment  may  be  rendered  for 
the  principal  and  interest  added  thereto,  though  the  complaint 
only  pray  for  judgment  for  the  principal.^ 

Section  11. 
interest  during  proceedings  to  collect  a  debt. 

Int  erest  on  verdict  before  judgment  —  On  judgments  vending  revieio  in 

ax^pellate  court. 

Interest  on  verdict  before  judgment. —  When  the  cause  of 
action  is  such  as  to  carry  interest,  and  judgment  is  delayed  after 
verdict  by  the  act  of  the  defendant,  by  an  unsuccessful  motion 
for  new  trial  or  writ  of  error,  in  Kew  York,  the  plaintiff  was 
held  entitled  to  interest  on  the  entire  amount  of  the  verdict  for 

rate  of  thirty  per  cent,  per  annum  uncertain.     But,  with  some  hesita- 

from  date  until  paid.     Breach  as-  tion,  the  court  held  tliat  tlie  amount 

sio-ned,     "yet    the    debt    remains  of  the  judgment  could  be  claimed 

unpaid;     wherefore     the     plaintiff  as  a  debt,  and  the  interest  from  its 

prays  judgment    for  his    debt  and  rendition  as  damages, 

damages   for  the  detention  of  the  i  Godwin    v.    McGehee,    19    Ala. 

same."    A  verdict    was   given    for  468.     See  Mills  v.   Heeney,   35  HI. 

debt  and  interest,  and  it  was  held  173;    Carter  v.   Lewis,    39    111.    500; 

right.    The  "  debt "  in  that  case  in-  Prescott    v.    Maxwell,    48    id.    83; 

eluded  the  principal  and  interest  to  Heiman  v.  Schroeder,  74  id.  158. 

the  time  of    the  action.     In  Nun-  schinn  v.  Hamilton,  supra;   Mc- 

neUe  v.  Morton,  Cooke  (Tenn.),  31,  Connell  v.  Thomas,  supra, 

where,  in  an  action  of  debt  on  a  SMcClure  v.   Cole,  6  Blackf.  390; 

judgment    in    which    interest    was  Verney  v.  Iddings,  2  Chitty,  234. 

specifically  asked  for,  it  was  at  first  *  Cassacia  v.  Phoenix  Ins.  Co.  2i8 

a  question  whether  the  claim  of  in-  Cal.  638;  Corcoran  t.  Doll,  33  Gel. 

terest  did  not  rendear  the  demand  83, 


mTEKEST   DUKING   PEOCEEDINGS   TO   COLLECT   A   DEBT. 


(09 


the  time  of  the  delay,  to  be  taxed  as  part  of  the  general  costs 
in  the  cause.^  Interest  is  so  allowed  in  cases  where  the  contract 
sued  on  carries  interest,^  but  only  for  the  period  during  which 
the  plaintiff  has  been  delayed  in  obtaining  judgment  by  the  act 
of  the  defendant.'  In  other  jurisdictions,  interest  during  this 
interval  has  been  computed  and  added  to  the  judgment.* 

If  the  demand  sued  for  is  of  such  a  nature  that  it  carries  in- 
terest before  verdict,  the  plaintiff's  right  to  interest,  between 
verdict  and  judgment  for  the  plaintiff,  when  there  is  delay  by 
the  act  of  the  defendant,  rests  upon  sound  principles.  The  fact 
that  the  defendant  disputes  his  liability,  or  the  amount  of  it, 
does  not  suspend  interest  before  verdict ;  nor  should  the  pend- 
ency of  a  defendant's  motion  for  a  new  trial,  or  in  arrest  of 
judgment,  on  untenable  grounds,  suspend  interest  between  ver- 
dict and    judgment.^    As  interest,  regulated   by  law   or  the 


1  Lord  V.  Mayor,  etc.  3  HiU,  426; 
People  V.  Gaines,  1  Jolin.  343;  Vre- 
denbergh.  v.  Hallett,  1  John.  Ca.  27; 
Henning  v.  Van  Tyne,  19  Wend.  101; 
AVilUams  v.  Smith,  3  Cai.  253;  BaU 
V.  Ketcham,  2  Denio,  183;  Bissell  v. 
Hopkins,  4  Cow.  53. 

2  Vredenbergh  v.  Hallett,  3  John. 
Ca.  425. 

3  Bull  T.  Ketchum,  2  Denio,  189. 
Vailv.  Nickerson,  6  Mass.  261  See 
Buckman  v.  Davis,  28  Pa.  St.  211. 

4  In  Irvin  v.  Hazleton,  37  Pa.  St. 
465,  a  verdict  was  taken  in  1853;  no 
further  proceeding  was  had  until 
1860,  when  judgment  was  entered 
for  the  amount  of  the  verdict,  with 
interest  from  its  date.  The  aUow- 
auce  of  interest  was  held,  on  error 
brought,  to  be  prpoer.  Strong,  J., 
said:  "It  was,  in  substance,  an  ex- 
ercise of  the  ordinary  and  well 
recognized  power  of  entering  a 
judgment  mmc  pro  tunc;  and  if 
they  had  the  power,  we  must  pre- 
sume, in  the  absence  of  reasons  to 
the  contrary,  that  it  was  rightfully 
exerted."  Referring  to  Kelsey  v. 
Murphy,  30  Pa.  St.  340,  he  said  the 
learned  judge  in  that  case  "denied 


that  interest  was  a  necessary  inci- 
dent to  a  verdict."  The  case  called 
for  nothing  more,  and  nothing  more 
ought  to  be  considered  as  decided 
by  it. 

5DoweU  V.  Griswold,  5  Sawyer, 
23.  The  reasoning  in  Kelsey  v. 
Murphy,  which  seems  to  be  disap- 
proved in  the  later  case  of  Irvin  v. 
Hazleton,  supra,  is  plausible;  but  in- 
terest, in  general,  is  not  refused 
upon  such  grounds.  Thompson,  J., 
says:  "  Interest  has  been  defined 
'  to  be  a  compensation  for  delay  of 
payment  by  the  debtor,'  and  is  said 
to  be  impliedly  due,  '  whenever  a 
liquidated  sum  of  money  is  unjustly 
withheld.'  10  Wheat.  440.  And 
again  —  but  rather  by  way  of  ampli- 
fication —  it  is  said  '  to  be  a  legal  and 
uniform  rate  of  damages  allowed  in 
the  absence  of  any  express  contract, 
when  payment  is  witliheld,  after  it 
has  become  the  duty  of  the  debtor  to 
discharge  the  debt. 

"  From  these  definitions,  differing 
but  little  in  essentials,  two  things 
must  uecessai-ily  pre-exist  to  raise 
this  duty  on  the  part  of  the  debtor; 
namel}^,  the  ascertainment  of  the 


TiO 


INTEKEST. 


agreement  of  the  parties,  is  a  definite  measure  of  damages  not 
requiring  testimon}^  to  prove  or  a  jury  to  decide,  there  is  no 
difficulty  in  the  matter  of  practice  in  allowing  the  interest  to 
run  until  judgment.     The  right,  and  the  convenience  of  prac- 


amount  to  be  paid,  and  its  maturity. 
If  these  essentials  ai-e  wanting,  the 
debt,  although  existing,  cannot  be 
said  to  be  due  and  withheld,  and  the 
duty  to  pay  has  not  become  impera- 
tive upon  the  debtor.  Unliquidated 
demands,  past  due,  will,  if  other- 
wise entitled,  bear  interest  upon  the 
maxim  of  id  certum,  etc.  They  can 
be  rendered  certain.  But  while  the 
question  of  indebtedness,  under  all 
the  ascertained  facts  in  the  case, 
is  in  abeyance,  as  is  the  case 
on  a  motion  for  a  new  trial,  the 
contract  of  the  debtor  is  sus- 
pended. The  case  is  in  gremio  legis, 
and  is  presumed  to  be  held  un- 
der consideration  by  the  ministers  of 
the  law.  The  debtor  can  neither  pay 
nor  tender  so  as  to  avail  anything, 
even  if  disposed  to  abandon  the  con- 
test. It  is  emphatically,  and  in  truth, 
the  'law's  delay.'  It  is  an  incident, 
inseparable  from  the  civil  ma- 
chinery, that  the  law  puts  in  opera- 
tion to  ascertain  the  truth,  between 
man  and  man,  and  until  the  process 
is  gone  through  with,  it  presumes 
that  errors  may  exist,  and  hence  not 
only  indulges  such  delays,  occasion- 
ally, but  sometimes  brings  out  of 
tliem  the  finest  achievements  of  its 
mission."  See  Hoopes  v.  Brinton,  8 
Watts,  73. 

In  Johnson  v.  Atlantic  &  St.  Law- 
rence R.  R.  43  N.  H.  410,  it  was  held 
that  interest  between  verdict  and 
judgment  upon  the  amount  of  the 
verdict  should  be  added  in  render- 
ing judgment.  Such  a  motion  was 
made  and  denied  by  the  trial  court. 
Bellows,  J.,  said:  "Upon  the  facts 
reported,  we  are  of  opinion  that 
the  allowance  of  interest  upon  the 


amount  of  the  verdict  would  have 
accorded  with  the  general  course  of 
practice  in  this  state,  and  is  sustained 
both  by  principle  and  authority. 

"Up  to  the  time  of  the  decision 
of  Robinson  v.  Bland,  2  Buit.  1085, 
the  general  principle  appears  to  have 
been  the  other  way  in  England,  and 
even  to  allow  no  interest  after  the 
commencement  of  the  action.  But 
the  question  was  much  discussed  in 
that  case,  by  Lord  Mansfield,  and 
the  allowance  of  such  interest  in 
general  put  upon  very  solid  ground; 
holding  that  '  nothing  can  be  more 
agreeable  to  justice  than  that  the 
interest  should  be  carried  down 
quite  to  the  actual  payment;  but  as 
that  cannot  be,  it  should  be  carried 
on  as  far  as  the  time  when  the  de- 
mand is  completely  hquidated;'  and 
he  says  he  '  don't  know  of  any  court 
in  any  country  which  does  not  carry 
interest  down  to  the  time  of  the  last 
act  by  which  the  sum  is  liquidated.' 
The  recovery,  in  this  case,  was  for 
money  loaned,  which  was  found  by 
a  special  verdict  to  be  £300,  and  to 
that  interest  was  added  by  the  court 
to  the  rendition  of  the  judgment; 
and  there  are  remarks  which  seem  to 
point  to  a  distinction,  in  this  respect, 
between  actions  of  assumpsit  and 
actions  of  trespass  and  the  like;  but 
the  general  course  of  the  reasoning 
applies  to  both  kinds  of  actions. 

"  The  decision  accords  also  with 
the  course  of  practice  of  courts  of 
equity,  where  interest,  after  the 
master's  report,  is  usually  added  in 
making  up  the  decree.  2  Dan.  Ch. 
Pr.  1442,  and  notes;  Brown  v.  Bark- 
ham,  1  P.  Wms.  652,  and  Perkyns 
V.  Baynton,  1  Bro.  Ch.  574. 


mTEKEST   DURING   PKOCEEDIXGS   TO    COLLECT   A   DEBT. 


ni 


tice,  concur  to  favor  the  allowance.  Interest  during  this  period, 
however,  is  not  universally  allowed.  In  Maryland,  in  partic- 
ular, such  interest  is  refused.^ 

On  jl'dgments  pending  review  in  appellate  court. —  On  gen- 
eral principles,  a  judgment  or  money  decree  beai*s  interest  from 
the  time  of  being  pronounced,  unless  a  different  time  is  fixed 
for  payment ;  because  the  moneys  so  adjudged  or  decreed  are 
liquidated  and  due.  But  interest  on  such  debts  being  allowed 
only  as  damages  for  detention  of  money  which  ought  to  be 
paid,  it  can  only  be  recovered  by  action,  or  judicially  awarded 
in  a  pending  action.  A  ministerial  officer  with  the  usual  proc- 
ess for  carrying  into  execution  the  judgment  or  decree  cannot 


"The  general  doctrine  of  these 
cases  is  recognized  in  Vredenbergh 
V.  Hallett,  1  John.  Ca.  27;  People  v. 
Gaine,  1  John.  343;  Wjlhams  v. 
Smith,  2  Cai.  258;  Lord  v.  Mayor, 
etc.  3  HiU.  426;  Bull  v.  Ketclium,  3 
Denio,  1S8;  Vail  v.  Nickerson,  6 
Mass.  262;  Winthrop  v,  Curtis,  4 
Greenlf.  297.  In  many  or  most  of 
these  cases,  the  allowance  of  interest 
upon  the  amount  of  the  verdict  is 
confined  to  cases  where  the  delay 
was  caused  by  the  act  of  the  de- 
fendant: and  now,  by  statute  in 
New  York,  this  distinction  is  dis- 
regarded. 

•'By  our  statute,  interest  is  now 
payable  on  all  executions  in  civil 
actions  from  the  time  judgment  is 
rendered.  Comp.  St.  296,  sec.  6. 
And  it  will  be  perceived  that  no 
distinction  is  made  as  to  the  nature 
of  the  action  in  which  the  judgment 
is  rendered;  and  it  wiU  also  be  ob- 
served, that  this  law  carries  out  the 
suggestion  of  Lord  Mansfield,  that 
justice  requires  that  interest  shovUd 
be  carried  do^\Ti  to  the  time  of  pay- 
ment. The  A-erdict  of  the  jury,  if 
judgment  is  rendered  upon  it,  must 
he  regarded  as  showing  the  amount 
justly  due  at  the  time  it  is  rendered, 
and,  in  most  cases,  whether  ex  coil' 


tractu,  or  ex  delicto,  interest,  eo 
nomine,  is  included  in  the  verdict, 
at  least  from  the  commencement  of 
the  suit;  and  in  the  other  cases,  it 
may  reasonably  be  sujDposed  that  it 
is  in  some  form  taken  into  account. 
No  solid  reason,  we  think,  can  be 
given  for  withholding  the  interest 
between  the  finding  of  the  jury  and 
the  rendering  of  judgment,  as  it  is 
quite  clear  that,  under  our  law  and 
practice,  interest  should  be  allowed 
at  all  other  times  from  the  com- 
mencement of  the  suit  at  least  until 
payment  and  satisfaction  of  the 
judgment. 

"  In  Bull  V.  Ketcham,  2  Denio, 
188,  the  defendant  delayed  judgment 
for  a  time  by  proceedings  designed 
to  set  aside  the  verdict;  but  aban- 
doned them;  and  the  plaintiff  after- 
wards took  steps  attended  with  delay 
for  a  new  trial,  the  motion  for  which 
was  denied.  Interest  was  allowed 
on  the  verdict  and  taxed  with  the 
costs  for  the  time  judgment  was  de- 
layed by  the  defendant,  and  then 
ceased;  and  no  interest  was  given 
while  the  plaintiff's  motion  for  new 
trial  was  pending," 

1  Baltimore  City  R'y  Co.  v.  SeweU, 
37  ]\Id,  443, 


712  INTEREST. 

assess  and  collect  such  interest  as  part  of  the  debt  he  is  author- 
ized and  required  to  levy,  unless  he  is  authorized  to  do  so  by- 
statute,  or  by  the  execution.^ 

A  defendant  in  an  execution  is  not  chargeable  with  interest 
upon  the  debt  due  by  him  beyond  the  return  day  of  the  execu- 
tion, although  the  plaintiff  does  not  receive  his  money ;  unless 
the  deiaj  is  occasioned  by  the  defendant.^ 

Unless  a  new  judgment  is  rendered  by  the  appellate  court ;  or 
by  its  jurisdiction  all  damages  pending  the  review  must  be 
awarded  in  its  judgment  of  affirmance,  the  adjudication  below 
remains ;  if  alBrmed,  it  is  available  from  the  time  it  was  made ; 
and  interest  is  not  suspended  by  appeal,  writ  of  error  or  certi- 
orari. It  may  be  collected  by  suit  or  by  execution,  legally  in- 
cluding accruing  interest,  as  though  no  proceedings  had  been 
had  in  an  appellate  court.^ 

Under  a  system  of  practice  by  which,  on  appeal  or  writ  of 
error,  a  final  judgment  is  entered  in  the  appellate  court,  the 
new  judgment  wiU  of  course  embrace  the  former,  in  case  of 
affirmance,  as  well  as  the  costs  and  damages  incident  to  the  ap- 
peal or  writ  of  error.  But  where  the  appeal  is  from  a  judg- 
ment of  a  single  judge  to  the  general  term,  as  in  l^ew  York, 
both  judgments  being  in  the  same  court,  the  general  term  does 
not  enter  a  new  judgment  on  affirmance  for  the  original  claim ; 
but  it  simply  declares  that  it  is  satisfied  to  let  the  former  judg- 
ment stand,  and  therefore  simply  affirms  it.  The  judgment  of 
affirmance  is  added  to  the  original  judgment  roU,  and  in  case 
of  appeal  to  the  court  of  last  resort,  the  whole  case  is  carried  up ; 
but  the  former  judgment  is  not  thereby  vacated.*  Under  this 
practice,  the  judgment  of  affirmance  should  not  include  interest 
on  the  judgment  which  is  affirmed.     It  has  become  the  estab- 

1  Kloclv  V.  Robinson,  22  Wend.  157.  ment  of    affirmance  below,    and  a 

2  Strolierker  v.  Bank,  6  Watts,  96.  question  arose  whether  the  right  to 

3  In  Lord  v.  Mayor,  etc.  3  Hill,  426,  interest  from  the  rendition  of  the 
a  judgment  of  affirmance  was  ren-  original  judgment  to  the  first  affirm- 
dered  on  certiorari,  and  this  judg-  ance  was  thereby  taken  away.  It 
ment  affirmed  on  writ  of  error  in  was  held  that  the  adjudication  be- 
the  court  of  last  resort.  The  final  low  being  affirmed  remained  avail- 
judgment  of  affirmance  expressly  able  from  the  time  it  was  made,  and 
awarded  to  the  successful  party  in-  such  interest  was  allowed. 

terest  from  the  date  of  the  judg-         ^Eno  v.  Crooke,  6  How.  Pr.  462. 


ESn'EKEST    DUIiING   PllOCEEDINGS   TO   COLLECT   A   DEBT.  do 

lisliecl  practice,  in  that  state,  to  exclude  from  tlie  judgment  of 
affirmance  all  sums  and  amounts  secured  by  the  judgment  in 
the  court  below.^ 

In  an  equity  case  the  mandate  of  the  supreme  court  directed 
the  com't  of  chancery  to  make  a  decree  that  the  plaintiff  should 
j)ay  the  defendant  a  certain  sum  as  damages  for  an  injunction ; 
but  directed  nothing  in  respect  to  the  interest  on  the  same ;  and 
the  court  of  chancery  made  the  decree  granting  interest  only 
from  the  date  of  the  decree ,  it  was  held  that  the  decree  was  in 
this  respect  in  accordance  with  the  mandate,  the  plaintiff  not 
being  in  default  for  not  paying  the  damages  until  the  decree 
was  made ;  and  therefore  not  liable  for  interest  prior  thereto. 
The  defendants  having  appealed  from  the  decision  refusing  in- 
terest, the  plaintiff  was  held  also  not  liable  to  pay  interest  while 
the  cause  was  in  the  supreme  court  on  the  appeal,  but  only  from 
the  time  it  was  remanded  to  the  court  of  chancery .^ 

In  Pennsylvania,  on  affirmance  of  a  judgment  in  the  appellate 
court  on  error,  interest  is  to  be  charged  on  the  judgment  below 
till  affirmance,  and  then  the  aggregate  is  to  bear  interest ;  and 
this  results  from  the  statute  gi\ang  interest  on  every  judgment. 
Whenever  a  judgment  is  given,  it  is  understood  that  interest  on 
any  former  judgment  in  the  same  action  is  to  be  charged.^ 

Where  the  damages  for  delay  during  an  unsuccessful  appeal 
or  other  mode  of  review,  in  an  appellate  com't,  is  subject  to  the 
determination  of  that  court,  its  judgment  controls  the  ques- 
tion of  interest  between  the  rendition  of  the  judgment  below 
and  its  affirmance  in  the  superior  court.*  If  a  new  trial  upon 
the  facts  takes  place  on  appeal,  interest  is  to  be  computed  in 
the  appellate  court  on  such  trial,  as  though  no  previous  trial 
had  been  had ;  and  not  on  the  judgment  appealed  from.^ 

By  section  twenty-three  of  the  judiciary  act  of  1789,^  it  was 

iBeardsley  Scythe  Co.  v.  Foster,  6  B.  Mon.  197;  Young  v.  Pate,  3  J.  J. 

36  N.    Y.  561;   Halsey  v.  Flint,    15  Marsh.  100;  Smith's  Adm'r  v.  Todd's 

Abb.  367.     See  Dougherty  v.  MiUer,  Ex'r,  id.  306. 

38  Cal.  548.  *  Butcher  v.  Norwood,  1  H.  &  J. 

2Sturges  V.   Knapp,   36  Vt.    439.  485;  Contee  v.  Findley,  id.  331.     See 

See   Vanvalkenbergh    v.    Fuller,    6  Kelsey  v.  ilurphy,  supra. 

Paige,  10.  5  Tindall  v.  Meeker,  2  111.  137.    See 

3  McCausland  v.  Bell,  9  S.  &  R.  Eno  v.  Croke,  6  How.  Pr.  463. 

388.    See  Brigham  v.  Van  Buskirk,  6  See  sec.  1010  of  R.  S.  U.  S. 


714:  INTEREST. 

provided  that  when  the  supreme  or  circuit  court  should  affirm  a 
judgment  or  decree,  they  should  adjudge  or  decree  to  the  re- 
spondent in  error  just  damages  for  his  delay,  and  single  or 
double  costs,  at  their  discretion.  Under  this  law  there  was  no 
distinction  made  between  cases  in  equity  and  at  law.  In  either 
of  them  the  allowance  of  damages  in  addition  to  the  amount 
found  to  be  due  by  the  judgment  or  decree  of  the  court  below 
was  confided  to  the  judicial  discretion  of  the  appellate  court. 
If,  upon  affirmance,  no  allowance  of  interest  or  damages  was 
made,  it  was  equivalent  to  a  denial  of  any  interest  or  damages ; 
and  the  court  below,  in  carrying  hito  effect  the  judgment  or  de- 
cree of  affirmance,  could  not  enlarge  the  amount  thereby 
allowed ;  but  was  limited  to  the  mere  execution  of  the  decree  or 
judgment  in  the  terms  in  which  it  was  expressed.  That  court, 
in  1803  and  1807,  made  rules  by  which  their  discretion  was 
guided.  By  the  seventeenth  rule,  when  a  case  appeared  to  be 
brought  merely  for  delay,  damages  were  awarded  at  the  rate  of 
ten  per  cent,  on  the  amount  of  the  judgment;  and  by  the 
eighteenth  rule,  the  damages  were  to  be  at  the  rate  of  six  per 
cent.,  when  it  appeared  that  there  was  a  real  controversy.^ 

1  Perkins  v.  Fourniquet,  14  How.  "The  case  now  before  us  was  de- 

328.     In  this  case,  Taney,  C.  J.,  re-  cided  in  the  early  part  of  the  last 

ferring  to  Mitchell  v.  Harmony,  13  term,  before  the  case  of  Mitchell  v. 

How.    115,    said:     "  The    judgment  Harmony,    and    consequently   falls 

brought  up  by  the  writ  of  error  was  within  the  operation  of    the  same 

rendered  in  the  circuit  court  of  New  rules,  and  damages  upon  the  affirm- 

York,    and    was    affirmed    by    this  ance  of  the  decree  must  be  calcu- 

court.      The     sum    recovered    was  lated  in  a  like  manner.     Indeed,  in 

large,  and  interest,  even  for  a  short  the  New  York  case,  the  claim  for 

time,     was,    therefore,     important,  interest  stood  on  stronger  ground 

And  counsel  for  Harmony,  the  de-  than  the  present  one,  for  that  was 

fendant  in  error,  moved  the  court  to  an  action  of  law.     The  act  of  1842, 

allow  him  the  New  York  interest  of  therefore,  applied  to  the  judgment 

seven  per  cent,  upon  the  amount  of  in  the  circuit  court,  and  it  would 

the  judgment,  and  that  the  interest  have  carried  the  state  interest  until 

should  run  until  the  judgment  was  paid,  if  it  had  not  been  brought  here 

paid."     But,  as  the  rules  [mentioned  by  writ  of  error.     But  this  is  a  de- 

in  the  text]  were  still  in  force,  the  cree  in  equity,  and  not  embraced  in 

court  held  that  he  was  entitled  only  the  act  of   1842,  and,  according  to 

to  six  per  cent.,   to  be  calculated  the  settled  chancery  practice,  no  in- 

from  the  date  of  the  judgment  in  terest  or  damages  could  have  been 

the    circuit    court    to    the    day    of  levied  imder  process  of  execution, 

affirmance  here.,              •  upon  the  amount  ascertained  to  be 


INTEKEST   DUKING   PKOCEEDESTGS   TO   COLLECT   A   DEBT.  715 

JJ^ow,  by  the  twenty-third  rule,  interest  and  damages  are  thus 
regulated : 

"  1.  In  cases  where  a  writ  of  error  is  prosecuted  to  this  court, 
and  the  judgment  of  the  inferior  court  is  affirmed,  the  interest 
shall  be  calculated  and  levied,  from  the  date  of  the  judgment 
below  until  the  same  is  paid,  at  the  same  rate  that  shiiLlar 
judgments  bear  interest  in  the  courts  of  the  state  where  the 
judgment  is  rendered.^ 

"  2.  In.  aU  cases  where  the  writ  of  error  shall  delay  the  pro- 
ceedings or  the  judgment  of  the  inferior  court,  and  shall  appear 
to  have  been  sued  out  merely  for  delay,  damages  at  the  rate  of 
ten  per  cent.,  in  addition  to  interest,  shaU  be  awarded  upon  the 
amount  of  the  judgment.^ 

"  3.  The  same  ride  shall  be  applied  to  decrees  for  the  pay- 
ment of  money  in  cases  of  chancery,  unless  ordered  by  this 
com't." 

due,  and  decreed  to  be  paid,  if  there  terest,  therefore,  the  taxing  oflBcer 

had  been  no  appeal.     2  Ves.  157,  168,  must  not  go  beyond  the  time  of  the 

n.  1  Sumn,  ed;  2  Dan.  Chan.  PI.  &  judgment  of  affirmance,  that  being 

Pr.    1442,    1437,    1438.      Nor    could  the  last  act  of  the  court  above.     The 

any  damages  or  interest  have  been  iDractice  in  this  respect,  in  our  state 

given  on  its  affirmance  here,  but  for  courts,  is  regulated  by[statute,  which 

the  discretionary  power  vested  by  cannot  apply  to  this  case.     See  same 

the  act  of  1789."    Boyce,  Ex'r,  v.  case,    3  Wheat.  246,  336.     See  also 

Grundy,   9    Pet.   275.     In    Hoyt  v.  Himley  v.  Rose,  5  Cranch,  313;  Kil- 

Gelston,  15  John.  221,  the  court  say:  bourne    v.   State    Savings    Inst.    22 

"Tliis  court  cannot  pronounce  any  How.  503;  Hennessy  v.  Sheldon,  12 

new  judgment  in  this  case.     It  can  WaU.  440;  Insurance  Co.  v.  Huch- 

only  carry  into  effect  the  judgment  bergers,  id.  166. 

of  the  supreme  court  of  the  United  l  Adopted  1803,  1851. 

States.     In  the  computation  of  in-  2  Adopted  1803,  1871. 


716  EXEMPLAKY   DAMAGES. 

CHAPTEE  IX. 

EXEMPLARY  DAMAGES. 

Compensation,  though  given  in  the  absence  of  culpable  motive,  will  be 
increased  when  wrong  done  with  bad  motive  —  Exemplary,  punitive  or 
punitory  and  vindictive  damages,  or  smart  money ;  diversity  of  opinion 
thereon;  what  they  are;  when  allowed,  and  for  ivhat  —  In  some  states 
confined  to  liberal  compensation  for  aggravated  injury  —  Difference 
when  given  for  compensation,  and  when  for  that  and  punishment  — 
Diversity  of  opinion  when  the  wrong  punishable  as  a  criminal  offense  — 
What  may  be  proved  to  enhance  or  mitigate  such  damages — Persons 
liable  ;  master  for  act  of  the  servant. 

Compensation  enoeeased  eok  wrongs  done  with  bad  motive. — 
A  party  who  breaks  his  contract  is  liable  for  the  resulting  dam- 
age, without  regard  to  the  motive  by  which  he  was  actuated. 
And  in  theory,  the  damages  m  actions  upon  contract  are  not 
affected  by  the  motive  which  induced  the  breach;  there  are 
some  exceptions  to  which  attention  has  been' called;^  but  such 
is  the  general  rule.  In  actions  of  tort,  full  compensation  may 
be  recovered,  though  the  injury  was  the  result  of  mistake,  or 
the  acts  done  in  good  faith.^  In  other  words,  the  right  to  com- 
pensation for  such  tortious  injuries  does  not  depend  at  aU  upon 
their  being  inflicted  purposely  or  with  any  culpable  inten^on. 

There  is,  however,  a  marked  difference  legally,  as  there  is 
practically,  between  a  tort  committed  with  and  without  mahoe ; 
between  a  wrong  done  in  the  assertion  of  a  supposed  right,  and 
one  wantonly  committed ;  one  unattended  with  any  incidents 
of  insult,  and  one  with  such  concomitants.  Such  vicious  ac- 
companiments increase  the  injury ;  for  which  additional  dam- 
ages may  be  awarded.  They  are  necessary  to  adequate 
compensation. 

Exemplary,  punitive  or  punitory  and  vindictive  damages,  or 
smajbt  money  —  Diversity  of  opinion  thereon  ;  what  they  are  ; 
WHEN  allowed. —  There  is  much  authority  for  allowing  dam- 
ages beyond  compensation  for  torts  whenever  a  case  shows  a 

1  See  ante,  p.  159.  2  gee  ante,  p.  19. 


EXKMTLAliY    DAMAGES.  717 

wanton  invasion  of  the  plaintiff's  rights,  or  any  circumstances 
of  outrage  or  insult ;  ^  whenever  there  has  been  oppression  or 
vindictiveness  on  the  part  of  the  wrongdoer ;  ^  whenever  there 
is  a  wilful,  malicious  or  reckless  tort  to  person  or  property.' 

In  a  Kentucky  case  the  court  say :  "  In  actions  of  trespass, 
jm-ies  are  authorized  to  give  what  is  denominated  smart  money. 
If  trespassers  were  bound  to  pay  in  damages  no  more  than  the 
exact  value  of  the  property  forcibly  taken  and  converted  by 
them,  there  would  be  no  motive  created  by  the  operation  of 
the  law  to  induce  them  to  desist  and  abstain  from  invading  the 
rights  of  others.  To  furnish  such  a  motive,  smart  money  is  al- 
lowed." *  In  an  Illinois  case  the  court  say :  "  The  experience 
of  past  ages  demonstrates  a  tendency  on  the  part  of  many  in 
every  community  to  take  the  law  in  their  own  hands,  and  to 
oppress,  insult,  and  abuse  others,  even  in  pursuing  their  rights. 
And  inasmuch  as  such  conduct  is  not  indictable,  the  law  has,  for 
the  repose  of  society,  authorized  the  jury  to  give  exemplary 
damages  where  a  trespass  is  wanton,  wilful,  or  malicious;  or 
where  it  is  accompanied  with  such  acts  of  indignity  as  to  show 
a  reckless  disregard  of  the  rights  of  others,  as  a  punishment 
for  the  wrong,  and  to  deter  others  from  the  perpetration  of 
such  acts."  ^  In  New  Hampshire  there  has  been  considerable 
fluctuation  of  decision ;  and  that  state  should  now  perhaps  be 
classed  with  those  in  which  exemplary  damages,  ultra  compen- 
sation, are  denied.^    But  in  several  cases  their  allowance  had 

'  Amer  v.  Longstreth,  10  Pa.  St.  are  many  cases  sanctioning  the  re- 

148.  covery  of    such  damages,   he  con- 

2  Nagle  V.  Mattison,  34  Pa.  St.  48.  tends,  with  great  force  of  reasoning, 

3  Illinois,  etc.  R.  R.  Co.  v.  Cobb,  not  easy  to  resist  on  principle: 

68  HI.  53;  Cutler  v.  Smith,  57  III.  1.  Tliat  many  of  the  cases  cited 

252.  in  support  of  exemplary  damages, 

*  Tyson  v.  Ewing,  3  J.  J.  Marsh,  and  many  loose  expressions  which 

186.  are  to  be  found  in  judicial  opinions, 

5  Cutler  V.  Smith,  57  111.  252.  when  clearly  scrutinized,  only  favor 

6  In  Fay  v.  Parker,  53  N.  H.  342,  a  Uberal  allowance  of  compensation 
a  very  able,  elaborate  and  exhaustive  in  consideration  of  aggravations, 
opinion  was  deUvered  by  Foster,  J,,  2.  That  where  there  are  such  facts 
and  in  which  the  court  seemed  to  as  have  generally  been  deemed  to 
be  unanimous,  against  exemplary  warrant  the  recovery  of  vindictive 
damages,  especially  where  the  act  damages,  they  should  be  considered 
oomplained  of  is  made  a  criminal  only  as  they  enhance  the  damages 
offense.     WWle  admitting  that  there  which  the  injured  party  is  entitled 


718 


EXEMPLARY   DAMAGES. 


been  affirmed.  The  court  say  in  one :  "  It  is  extremely  well 
settled  that  exemplary  or  vindictive  damages  may,  in  certain 
cases,  be  recovered ;  and  this  is,  perhaps,  in  accordance  with  the 
legislative  policy  which  has  given  pecuniary  penalties'  in  numer- 
ous instances,  to  private  prosecutors  of  certain  offenses.  Where 
the  wrong  done  to  the  party  partakes  of  a  criminal  character, 


to  receive;  that  nothing  should  be 
allowed  for  punishment  as  a  sub- 
stantive element  or  purpose. 

3.  That  to  permit  a  plaintiff  to 
recover  for  his  actual  damages,  in- 
cluding, as  they  should,  his  pecun- 
iary loss,  and  in  cases  cf  personal 
injury,  or  other  torts  aggravated 
by  personal  abuse  or  insult,  for  pain, 
bodily  and  mental;  and.  in  addition, 
a  sum  by  way  of  punishment,  is  to 
subject  the  defendant  to  the  injus- 
tice of  a  double  recovery;  for  he  is 
thus  compelled  to  pay  more  than  the 
plaintiff  is  entitled  to  receive. 

4.  If  the  defendant  is  subject  to 
be  punished  criminally  for  the  same 
act,  then  the  recovery,  in  a  civil 
action,  of  vindictive  or  punitory 
damages,  exposes  the  wrongdoer  to 
double  punishment,  besides  making 
full  compensation  for  every  element 
of  injiiry  to  the  injured  pai'ty. 

5.  That  such  double  recovery  of 
damages,  and  such  double  punish- 
ment, are  an  infraction  of  the 
maxims  of  the  common  law  against 
being  twice  vexed  for  the  same  cause, 
or  twice  punished  for  the  same 
offense;  and  an  infraction  of  the 
guaranties  found  in  nearly  all 
American  constitutions  on  the  same 
subject. 

The  learned  jvidge  concluded  his 
opinion  by  saying:  "The  true  rule, 
simple  and  just,  is  to  keep  the  civil 
and  criminal  process  and  practice 
distinct  auJ  separate.  Let  the  crim- 
inal law  deal  with  the  criminal,  and 
administer  punishment  for  the  legiti- 
mate pui'pose  and   end  of    punish- 


ment,—  namely,  the  reformation  of 
the  offender,  and  the  safety  of  the 
people.  Let  the  indiv^idual  whose 
rights  are  infringed,  and  who  has 
suffered  injury,  go  to  the  civU 
courts,  and  there  obtain  full  and 
ample  reparation  and  compensation; 
but  let  him  not  thus  obtain  the 
'  fruits '  to  which  he  is  not  entitled, 
and  wliich  belong  to  others. 

' '  Wliy  longer  tolerate  a  false  doc- 
trine, which,  in  its  practical  ex- 
emplification, deprives  a  defendant 
of  his  constitutional  right  of  indict- 
ment or  complaint  on  oath,  before 
being  called  into  court?  deprives 
him  of  the  right  of  meeting  the 
witnesses  against  him  face  to  face  ? 
deprives  him  of  the  right  of  not 
being  compelled  to  testify  against 
himself  ?  deprives  him  of  the  right 
of  being  acquitted,  unless  the  proof 
of  his  offense  is  established  beyond 
a  reasonable  doubt  ?  deprives  him  of 
the  right  of  not  being  punished 
twice  for  the  same  offense. 

"  Punitive  damages  destroy  eveiy 
constitutional  safeguard  within  their 
reach.  And  what  is  to  be  gained  by 
this  annihilation  and  obliteration  of 
fundamental  law  ?  The  sole  object, 
in  its  practical  results,  seems  to  be, 
to  give  a  plaintiff  something  which 
he  does  not  claim  in  his  declaration. 
If  justice  to  the  plaintiff  requires 
the  desti'uction  of  the  constitution, 
there  would  be  some  pretext  for 
wishing  the  constitution  were  de- 
stroyed. But  why  demolish  the 
plainest  guaranties  of  that  instru- 
naent,  and  explode  the  very  founda- 


EXEMPLARY   DAIIAGES.  719 

though  not  punishable  as  an  offense  against  the  state,  the  puhhc 
may  be  said  to  have  an  interest  that  the  wrongdoer  should  be 
prosecuted  and  brought  to  justice  in  a  civil  suit ;  and  exemplary 
damages  may,  in  such  cases,  encourage  prosecutions  where  mere 
compensation  for  the  private  injury  would  not  repay  the  trouble 
and  expense  of  the  proceeding."  ^  In  a  subsequent  case,^  this  doc- 
trine is  approved,  and  the  court  add  that  it  "  furnishes  the  most 
efficient,  if  not  the  only  means  of  correcting  many  very  serious 
social  abuses ;  and  among  those,  that  of  gross  negligence,  which 
puts  at  unnecessary  hazard  the  life  and  limbs  of  large  numbers 
of  passengers,  must  take  high  rank.  It  is  not,  therefore,  to  be 
regretted  that  the  law  has  established  an  exception  to  the  or- 
dinary rule  in  respect  to  damages,  and  armed  the  sufferer  in  such 
cases  with  the  power  to  administer  a  corrective,  which  cannot 
or  will  not  otherwise  be  efficiently  apphed  at  all." 

These  views  have  been  sanctioned  by  the  supreme  court  of  the 
United  States.  Mr.  Justice  Grier  said:'  "It  is  a  well  estab- 
lished principle  of  the  common  law,  that  in  actions  of  trespass, 
and  all  actions  on  the  case  for  torts,  a  jury  may  mflict  what  are 
called  exemplary,  punitive  or  vindictive  damages  upon  a  defend- 
ant ;  having  in  view  the  enormity  of  his  offense,  rather  than  the 
measure  of  compensation  to  the  plaintiff.  "We  are  aware  that 
the  propriety  of  this  doctrine  has  been  questioned  by  some 
writers;  but  if  repeated  judicial  decisions  for  more  than  a  cen- 
tury are  to  be  received  as  the  best  exposition  of  what  the  law  is, 
the  question  will  not  admit  of  argument.     By  the  common  law, 

tion  upon  which  constitutional  guar-  and  if  thy  riglit  hand  offend  thee, 

ties  are  based,  for  no  other  purpose  cut  it  off.'    Wherefore,  not  reluct- 

than  to  perpetuate  false  theories  and  antly,  should  we  apply  the  knife  to 

develop  unwholesome  fruit  ?  this   deformity,    concerning  which 

"  Undoubtedly,  the  pernicious  doc-  every  true  member  of  the  sound  and 

trine   '  has  become  so  fixed  in  the  healtliy  body  of  the  law  may  well 

law,'  to  repeat  the  language  of  Mr.  exclaim:  'I  have  no  need  of  thee.'" 

Justice  Campbell,  of  Michigan,  'that  2  Greenlf .  Ev  ^^353,  273;  Boyer  v. 

it  may  be  difficult  to  get  rid  of  it.'  Barr,  8  Neb.  68:  Tabor  v.  Hutson,  5 

But  it  is  the  business  of  courts  to  Ind.  322;  Stewart  v.  Maddox,  63  Ind. 

deal  with  difficulties;  and  this  hei-esy  51. 

.should  be  taken  in  hand  without  i  Hopkins  v.  Railroad,  36  N.  H.  9. 

favor,  firmly  and  fearlessly.  2  Taylor  v.  Railway,  48  N.  H.  320. 

"It  was  once  said:  'If  thy  right  'Day    v.    Woodworth,    13    How. 

eye  offend  thee,  pluck  it  out;    .     .     .  371. 


720  EXEMPLAKT   DAMAGES. 

as  well  as  by  statute  law,  men  are  often  punished  for  aggravated 
misconduct  or  lawless  acts,  by  a  civil  action,  and  the  damages, 
inflicted  by  way  of  penalty  or  punishment,  given  to  the  party 
injured.  In  many  civil  actions,  such  as  hbel,  slander,  seduction, 
etc.,  the  wrong  done  to  the  plaintiff  is  incapable  of  being  meas- 
ured by  a  money  standard ;  and  the  damages  assessed  depend  on 
the  circumstances,  showing  the  degree  of  moral  turpitude  or 
atrocity  of  the  defendant's  conduct,  and  may  properly  be  termed 
exemplary  or  vindictive,  rather  than  compensatory.  In  actions 
of  trespass,  where  the  injury  has  been  wanton  and  malicious,  or 
gross  and  outrageous,  courts  permit  juries  to  add  to  the  meas- 
ured compensation  of  the  plaintiff,  which  he  would  have  been 
entitled  to  recover,  had  the  injury  been  inflicted  without  design 
or  intention,  something  farther  by  way  of  punishment  or  exam- 
ple, which  has  sometimes  been  called  '  smart  money.'  This  has 
been  always  left  to  the  discretion  of  the  jury;  as  the  degree  of 
punishment  to  be  thus  inflicted  must  depend  on  the  peculiar  cir- 
cumstances of  each  case.  It  must  be  evident,  also,  that  as  it  de- 
pends upon  the  degree  of  malice,  wantonness,  oppression  or 
outrage  of  the  defendant's  conduct,  the  punishment  of  his  delin- 
quency cannot  be  measured  by  the  expenses  of  the  plaintiff  in 
prosecuting  his  suit.  It  is  true  that  damages,  assessed  by  way 
of  example,  may  thus  indirectly  compensate  the  plaintiff  for 
money  expended  in  counsel  fees;  but  the  amount  of  these  fees 
cannot  be  taken  as  the  measure  of  punishment  or  a  necessary 
element  in  its  infliction."  ^ 

In  the  actions  here  spoken  of,  the  conduct  and  motives  of  the 
defendant  are  open  to  inquiry,  with  a  view  to  the  amount  of 
damages.  If,  in  committing  the  wrong  complained  of,  he  acted 
recklessly,  or  wilfully  and  maliciously,  with  a  design  to  oppress 
and  injure  the  plaintiff,  the  jury  in  fixing  the  damages  may  dis- 
regard the  rule  of  compensation ;  and,  beyond  tha^t,  may,  as  a 
punishment  of  the  defendant,  and  as  a  protection  to  society 
against  a  violation  of  personal  rights  and  social  order,  award 
such  additional  damages  as  in  their  discretion  they  may  deem 
proper.    This  rule  has  been  held  to  apply  in  aU  actions  for  torts  — 

iStimpson  V.  The  Railroad,  2  Wall.  Jr.  164^  Milwaukee,  etc  R.  R  Co.  v. 
Arms,  1  Ottoy  489. 


EXEMrLARY    DAMAGES. 


T21 


in  actions  for  personal  injuries,  in  cases  of  a  wilful  injury  to  prop- 
erty, and  in  actions  for  tort  founded  upon  negligence,  amounting 
to  misconduct  and  recklessness.* 

The  doctrine  that  such  damages  may  be  allowed  for  the  pur- 


4  Voltz  V.  Blackmar,  64  N.  Y.  440; 
Tift  V.  Culver,  3  Hill,  180;  Tillotson 
-V.  Cheetham,  3  Johns.  56;  Wort  v. 
Jenkins,  14  John.  353;  Taylor  v. 
Railway,  48  N.  H.  330;  Goodspeed 
V.  The  Bank,  23  Conn.  53;  Fleet  v. 
Hollenkemp,  13  B.  Mon.  219;  Jen- 
nings V.  Maddox,  8  B.  Mon.  433; 
lUinois,  etc.  R.  R.  Co.  v.  Cobb,  68 
lU.  53;  Becker  v.  Dupree,  75  111.  167; 
Hobinson  v.  Barton,  5  Harr.  (Del.) 
335;  Fox  v.  Stevens,  13  Minn.  273; 
Dibble  v.  Morris,  26  Conn.  416; 
Young  V.  Mertens,  27  Md.  114;  Elbin 
v.  Wilson,  33  Md.  135;  Wade  v. 
Thayer,  40  Cal.  578;  Mc Williams  v. 
Bragg,  3  Wis.  534;  Hoadley  v.  Wat- 
son, 45  Vt.  289;  Gilreath  v.  Allen, 
10  Ired.  L.  67;  Bradley  v.  Morris, 
Busbee  (N.  C),  395;  Stevenson  v. 
Belknap,  6  Iowa,  97;  Reeder  v. 
Purdy,  48  111.  261;  Chicago,  etc.  R. 
R.  Co.  V.  Williams,  55  111.  185;  Mc- 
Namara  v.  King,  7  111.  43;  Kalb  v. 
O'Brien,  86  111.  310;  Still  well  v.  Bar- 
uett,  60  lU.  310;  Bauer  v.  Gottman- 
liauser,  65  111.  499;  Lawrence  v. 
Hagerman,  56  111.  68;  Clevenger  v. 
Dunaway,  84  111.  367;  Sherman  v. 
Dutch,  16  111.  383;  Drohn  v.  Brewer, 
77  111.  280;  Miller  v.  Kirby,  74  111. 
242;  Scott  v.  Bryson,  74  III.  430; 
Farwell  V.  Warren,  70111.  38;  Grable 
V.  Margrave,  3  Scam.  373;  Johnson 
V.  Weedman,  5  lU.  495;  Smalley  v. 
Smalley,  81  111.  70;  McBride  v. 
McLaughlin,  5  Watts,  375;  Allaback 
v.  Utt,  51  N.  Y.  654;  Von  Fragstein 
V.  Windier,  2  Mo.  App.  598;  New- 
ouan  V.  St.  Louis,  etc.  R.  R.  Co.  2 
Mo.  App.  403;  Kennedy  v.  North 
Mo.  R.  R.  Co.  36  Mo.  351;  Green  v. 
•Craig,  47  Mo.  90;  Molecek  v.  Tower 
Grove  R.  R.  Co.  57  Mo.  17;  Kling- 
VOL.  I  — 46 


man  v.  Holmes,  54  Mo.  804;  Graham 
V.  Pacific  R.  R.  Co.  66  Mo.  536; 
Kansas,  etc.  R.  R.  Co.  v.  Little,  19 
Kan.  267;  Edelman  v.  St.  Louis  T. 
Co.  3  Mo.  App.  503;  Vicksburg,  etc. 
R.  R.  Co.  V.  Potter,  31  Miss.  155; 
Storm  v.  Green,  51  Miss.  103;  Mem- 
phis, etc.  R.  R.  Co.  V.  Wliitfield,  44 
Miss.  466;  Burrage  v.  Milson,  18 
Miss,  237;  Kalb  v.  Bankhead,  18 
Tex.  228;  Smith  v.  Sherwood,  2  Tex. 
460;  Bowler  v.  Lane,  3  Met.  (Ky.) 
311;  Cochran  v.  Miller,  13  Iowa,  128; 
Champion  v.  Vincent,  20  Tex.  811; 
The  Greenville,  etc.  R.  R.  Co.  v. 
Partlow,  14  Rich.  237;  Western 
Union  Tel.  Co.  v.  Eyser,  2  Col.  141; 
Magee  v.  Holland,  27  N.  J.  L.  86; 
Mobile,  etc.  R.  R.  Co.  v.  Ashcroft, 
48  Ala.  15;  Hefley  v.  Baker,  19  Kan. 
9;  Sawyer  v.  Lauer,  10  Kan.  466; 
Raynor  v.  Nims,  37  Mich.  34;  Em- 
blen  V.  Myers,  6  H.  &  N.  54;  Balti- 
more, etc.  T.  Co.  v.  Boone,  45  Md. 
344;  McWiUiams  v.  Holan,  42  Md. 
56;  Philadelphia,  etc.  R.  R.  Co.  v. 
Larkin,  47  Md.  155;  Bradshaw  'v. 
Buchannan,  50  Tex.  493;  Titus  v. 
Carkins,  21  Kan.  722;  Meidel  v.  An- 
this,  71  111.  241;  Dutton  v.  Beers,  38 
Conn.  539;  Munter  v.  Bande,  1  Mo. 
App.  484;  Parker  v.  Shackleford,  61 
Mo.  68;  Shaw  v.  Brown,  41  Tex.  446; 
Welch  v.  Durand,  36  Vt.  182;  Ells- 
worth V,  Potter,  41  Vt.  685;  Slater 
V.  Sherman,  5  Bush,  206;  Huckle  v. 
Money,  2  Wils.  205;  Tullidge  v. 
Wade,  3  Wils.  18;  Merest  v.  Harvey, 
5  Taunt.  442;  Brewer  v.  Dew,  11 
M.  &.  W.  635;  Sears  v.  Lyons,  3 
Stark.  317;  Williams  v.  Currie,  1 
Man.  G.  &  S.  841;  BeU  v.  Midland 
R'y  Co.  10  C.  B.  N.  S.  287. 


722 


EXEMPLARY    DAMAGES. 


j)ose  of  example  and  punishment,  in  addition  to  compensation, 
in  certain  cases,  is  held  in  nearly  all  the  states  of  the  Union  and 
in  England.  In  some  it  is  followed  with  reluctance  and  dep- 
recating acquiescence;  in  others  with  emphatic  indorsement; 
while  in  a  few  of  the  states  it  is  not  accepted,  or  but  partially 
accepted.  There  is  a  substantial  and  practical  difference,  and 
not  a  mere  verbal  conflict,  on  two  aspects  of  the  subject. 
First,  as  to  what  is  intrinsically  meant  by  exemplary,  vindictive, 
punitive  or  punitory  damages;  those  words  in  general  being- 
used  indifferently  as  importing  the  same  thing. ^    Second,  in 


1  Chiles  V.  Drake,  3  Met.  (Ky.)  146; 
Louisville,  etc.  R.  R.  Co.  v.  Smith,  3 
Duvall,  556;  Kennedy  v.  North  Mo. 
R.  R.  Co.  36  Mo.  351. 

In  Meidel  v.  Authis,  71  111.  341, 
the  court  gave  a  construction  to  the 
remedy  of  a  wife  for  damages  under 
the  liquor  law  of  that  state.  That 
act  subjects  the  seller  of  intoxicat- 
ing liquors,  sold  contrary  to  its  pi'O- 
visions,  to  punishment  by  indict- 
ment; it  also  gives  a  civil  remedy  in 
damages  to  a  wife,  among  others, 
who  is  injured  in  person,  property  or 
means  of  support,  by  the  intoxica- 
tion of  her  husband,  caused  by  such 
unauthorized  and  proliibited  sales. 
Breese,  Ch.  J.,  referred  to  Freese  v*. 
Tripp,  70  111.  496,  aud  said:  "It  was 
held  in  that  case  that  the  statute 
being  highly  penal  in  its  character, 
and  introducing  remedies  unknown 
to  the  common  law,  in  which  the 
person  prosecuting  had  decided  ad- 
vantages over  the  party  defending, 
should  receive  a  strict  construction. 
It  was  held  there  that  anguish  or 
mental  pain  of  the  wife  was  not  an 
element  of  damage  to  be  considered. 
The  statute  contemplates  only  injury 
in  person  or  property  or  means  of 
support.  It  was  also  held,  the  jury 
could  not  give  exemplary  damages, 
unless  actual  damages  were  proved 
and  found. 

"In  support  of  this,  Schneider  v. 


Hosier,  31  Ohio  St.  98,  was  cited.  It 
Avas  also  held,  that  exemjilary  dam- 
ages could  not  be  awaixled  as  pun- 
ishment, for  the  reason  the  statute 
itself  provides  the  public  shall  avail 
of  its  preventive  provisions  by  in- 
dictment, §§6,  8;  that  putting  money 
in  the  pocket  of  the  plaintiff  would 
be  no  satisfaction  to  the  public  for 
violation  of  a  penal  statute. 

"Appellee  in  this  case  insists  such 
damages  can  be  awarded;  that  the 
statute  allows  exemplary  damages. 
This  is  true,  but  not  damages  by 
way  of  punishment,  but  exemplary 
damages,  such  as  will  operate  as  an 
example,  or  a  warning  to  deter  the 
party  or  others  from  similar  transac- 
tions, and  aggravating  circumstances 
must  be  shown. 

"Appellee  says  such  damages  are 
allowed  in  actions  of  tort  at  com- 
mon law.  Granted;  but  this  is  not 
an  a,ction  of  tort  at  common  law; 
and  the  idea  of  the  statute  does  not 
seem  to  be,  as  it  has  provided  a  pun- 
ishment for  the  public  wrong,  that 
a  complaining  party  in  a  civil  suit 
should  pocket  money  by  way  of 
punishment  for  the  offender.    ,    .    . 

' '  We  concede,  tlus  court  is  com- 
mitted to  the  doctrine,  that  in  cer- 
tain actions  of  tort,  at  the  common 
law,  the  jury  can  go  beyond  the 
question  of  mere  compensation  for 
the  injury,    and  give  damages  by 


EXEMPLARY    DA:MAGES. 


respect  to  the  consequence  to  the  civil  remed}^,  of  the  tortious 
act  complained  of  being  an  offense  punishable  under  the  crimi- 
nal laws. 

Where  the  element  of  punishment,  or  of  giving  damages, 
beyond  compensation,  for  example,  to  warn  the  defendant  and 
others,  is  admitted,  the  jury  are  permitted  in  their  discre- 
tion, in  a  proper  case,  to  allow  an  additional  amount  specially 
for  those  purposes ;  and  in  doing  so,  to  put  out  of  view  the 
idea  of  compensation  to  the  injured  party,  by  this  additional 
sum,  for  any  immediate  or  remote  loss  or  injury  to  him.  In 
determining  what  this  sum  shall  be,  the  turpitude  of  the 
defendant's  conduct  alone  is  considered ;  not  to  appreciate  the 
injury  or  distress  of  the  sufferer,  in  the  particular  instance,  but 
contemplating,  in  behalf  of  the  public,  the  act  as  exemplifying 
the  vn'ongdoer's  vicious  mind, —  as  an  overt  act  of  vindictive  or 
wanton  wrongs  offensive  and  dangerous  to  the  state.     This  is 


ITay  of  punishment,  though  ancient 
law  ■^Titers  protest,  and  insist  that 
this  was  not  a  pi-inciple  of  the 
ancient  and  genuine  common  law. 
It  is  insisted,  by  that  law,  the  civil 
remedy  for  a  \^^rong  done  should 
not  be  punitive  to  the  wrongdoer, 
as  well  as  compensative  to  the  suf- 
ferer.    3  Parsons  on  Cont.  170. 

"  Greenleaf ,  in  his  treatise  on  Y.y\- 
dence,  in  most  emphatic  language, 
affirms  that  the  position  that  dam- 
ages may  be  given  by  waj'  of  pun- 
ishment has  not  the  countenance  of 
any  express  decision  upon  the  point, 
though  it  has  the  support  of  several 
obiter  dicta;  and  inquires,  if  this  be 
a  rule  of  law,  how  is  the  party  to  be 
protected  from  double  punishment  ? 
2  Greenleaf  on  Evidence,  §  242,  in  an 
elaborate  note. 

"Although  this  court  is  commit- 
ted to  the  other  doctrine,  still,  the 
question  remains,  under  this  stat- 
ute, can  the  jury  give  exemplary 
damages  by  "way  of  punishment  of 
the  offender?  They  may  give  ex- 
emplary damages.    We  vmderstand 


by  this,  they  may,  in  a  proper  case, 
give,  besides  actual  damages  to  the 
party  injui-ed,  such  damages  as  may 
operate  as  a  warning  to  others  — 
they  may  make  an  example  of  the 
seller  by  the  quantum  of  damages 
they  shall  award  against  him.  We 
cannot  believe  that  it  was  the  de- 
sign of  the  legislature  to  give  to  the 
jury  in  such  an  action  the  power  to 
punish  the  violator  of  the  law  in  the 
shape  of  damages,  which  go  to  the 
party  injured,  the  more  especially 
as,  by  the  very  act  authorizing  ex- 
emplary damages,  the  seller,  as  pun- 
ishment for  his  wrong  doing,  is  sub- 
ject to  fine  and  imprisonment  in  the 
covmty  jail.  Exemplary  damages 
must  not  be  given  as  punishment  — 
not  as  vindictive  but  as  exemplary 
damages.  This  is  a  penal  statute, 
and  to  the  words  under  it  the  proper 
significance  must  be  given.  It  is 
enough  to  comply  with  the  statute, 
for  the  court  to  tell  the  jury  that,  in 
addition  to  actual  damages,  they 
might  find  exemplary  damages." 


724  EXEMPLAHY    DAMAGES. 

the  view  of  tliese  damages  which  generally  prevails.  They  are 
allowed  when  a  wrongful  act  is  done  with  a  bad  motive ;  or  so 
recklessly  as  to  imply  a  disregard  of  social  obligations;  or 
where  there  is  negligence  so  gross  as  to  amount  to  misconduct 
and  recklessness.^ 

If  a  wrong  is  done  wilfully ;  that  is,  if  a  tort  is  committed 
deliberately,  recklessly,  or  by  wilful  negligence,  with  a  present 
consciousness  of  invading  another's  right,  or  of  exposing  him 
to  injury,  an  undoubted  case  is  presented  for  exemplary  dam- 
ages. To  enable  a  jury  to  exercise  their  discretion  wisely  for 
the  purposes  for  which  such  damages  are  allowable,  all  the  facts 
and  circumstances  which  belong  to  the  principal  transaction 
and  tend  to  develop  its  character,  should  be  submitted  to  them.^ 

These  damages  are  allowable  only  when  there  is  misconduct 
and  malice,  or  what  is  equivalent  to  it.  A  tort  committed  by 
mistake,  in  the  assertion  of  a  supposed  right,  or  without  any 
actual  wrong  intention ;  and  without  any  such  recklessness  or 
neghgence  as  evinces  malice  or  conscious  disregard  of  the  rights 
of  others,  will  not  warrant  the  giving  of  any  damages  for 
punishment3  where  the  doctrine  of  such  damages  prevails.' 

An  excessive  battery  is  an  answer  to  a  plea  of  son  assault 
demesne,  and,  if  wantonly  or  maliciously  inHicted,  subjects  the 
party  making  it  to  the  same  liability  to  exemplary  damages  as 
if  he  had  been  the  original  wrongdoer.*    So  the  fact  that  a  per- 

iVoltz  V.  Blackmar,  64N.  Y.  440;  26  Conn.  355;  Phelps  v.   Owen,    11 

Milwaukee,  etc.  R.  R,  Co.  v.  Arens,  Cal.  32;  Goetz  v.  Ambe,  27   Mo.  28; 

91  U.  S.  489;  Prickett  v.  Crook,  20  Biggs  v.  D'Aquir,  13  La.  Ann.  21; 

Wis.  358;  Caldwell  v.  New  Jersey  Jones  v.  Rapilly,  16  Minn.  321;  Bev- 

Steamboat  Co.  47  N.  Y.  282;  Hoad-  eridge  v.  Welch,  7  Wis.  465;  Blodg- 

ley  V.  Watson,  45  Vt.  289;  Meibus  V.  ett    v.    Brattleboro,     30    Vt.     579; 

Dodge,  38  Wis.  300;  Baltimore,  etc.  Smith  v.  Wunderlich,   70  111.   426; 

T.  Co.  V.  Boone,  45  Md.  344;  Sher-  Stillwell  v.  Barnett,  60  111.  210;  Tripp 

man  v.  Dutch,  16  111.  283;  Clevenger  v.    Grouner,    60  111.   474;  Elliott  v. 

V.  Dunaway,  84  111.  367,  Herz,    29     Mich.    202;    Walker    v. 

2  Id.  Fuller,  29  Ark.  448;  Brown  v.  Allen, 

3Kolb  V.  O'Brien,  86  lU.  210;  Floyd  35  Iowa,  306;    Screpps  v.  Reilly,  38 

V.  Hamilton,  33  Ala.  235;  Derraughn  Mich.  10;  Hyatt  v.  Adams,  16  Mich. 

V.  Heath,  37  Ala.  595;  Hamilton  v.  180;  Allison  v.  Chandler,  11  Mich. 

Third  Ave.  R.   R.  Co.  53  N.  Y.  25;  542. 

Wallace  V.  The  Mayor,  etc.  of  N.  Y.  *  Philadelphia,   etc.   R.   R.  Co.  v. 

9  Abb.  40;  Moody  v,  McDonald,  4  Larkin,  47  Md.  155. 

Cal.  297;  St.  Peter's  Church  v.  Beach, 


EXEMPLARY   DAMAGES. 


T25 


son  who  has  acted  oppressively  and  cruelly  in  dispossessing  an- 
other in  inclement  weather,  believed  he  had  a  right  to  eject 
him,  will  not  be  a  protection  from  exemplary  damages,  if  it  be 
found  that  he  had  not  such  legal  right.^ 


iRaynor  v.  Nims,  37  Mich.  34. 
There  is  a  very  instractive  and  rea- 
sonable resume  of  the  discussions  on 
the  general  subject  in  Heudrickson 
V.  Kingsbury,  21  Iowa,  379,  which 
"was  an  action  for  assault  and  battery. 
In  the  instiiictions  to  the  jury,  the 
trial  court  thus  defined  and  stated 
the  law  of  exemplary  damages: 
"  Exemplaiy  damages  are  given 
whenever  elements  of  oppression  or 
fraud  or  malice  enter  into  the  com- 
mission of  the  offense;  and  in  such 
cases,  the  jury  are  not  hmited  to 
actual  compensation,  nor  are  they 
required  to  scrutinize  very  closely 
the  amount  of  their  verdict;  but 
blending  together  the  rights  of  the 
injured  party  and  the  interests  of 
the  community,  they  may  give  such 
a  verdict  as  will  compensate  for  the 
injury,  and  at  the  same  time  inflict 
some  punishment  upon  the  defend- 
ant for  liis  wrongful  act,  protect 
society,  and  manifest  the  detestation 
in  which  the  act  is  held  by  them." 
On  appeal,  Mr.  Justice  Cole  said: 
"  As  to  the  right  of  the  jury  to  in- 
crease the  amount  of  the  verdict  so 
as  '  to  manifest  the  detestation  in 
which  the  act  is  held  by  them,'  we 
think  that  such  language,  or  its 
equivalent,  cannot  be  found  in  any 
authoritative  report  of  any  adju- 
dicated case  in  England  or  this 
country.  Mr.  Sedgwick,  in  his 
article  in  reply  to  Pi'ofessor  Green- 
leaf's  review  of  his  text,  both  of 
which  may  be  found  in  the  appendix 
to  Sedgwick  on  the  Measure  of  Dam- 
ages (2d  and  3d  ed.),  quotes  that 
language,  and  cites  Lives  of  the 
Lord  Chancellors,  vol.  5,  p.  249.  We 
have  the  second  American  from  the 


third  London  edition  of  that  most 
excellent  work,  and  on  pages  313 
and  214  the  learned  author  and 
justly  distinguished  jurist.  Lord 
Cami^bell,  after  stating  the  circum- 
stances of  the  discharge,  under 
habeas  corpus,  of  Mr.  Wilkes  from 
arrest  for  libel  under  a  '  general 
warrant,'  issued  by  Lord  Halifax, 
says:  'The  immense  popularity  which 
Lord  Chief  Justice  Pratt  (afterward 
Lord  Camden)  now  acquired,  led 
him  into  some  intemperance  of  lan- 
guage, although  his  decisions  might 
be  sound.  Many  actions  were 
brought  in  his  coui-t  and  tried  be- 
fore him,  for  aiTesls  under  general 
warrants;  and,  the  juries  giving 
enormous  damages,  applications 
were  made  to  set  aside  the  verdicts, 
and  to  grant  new  trials.  It  might 
be  right  to  refuse  to  mterfere,  but 
not  in  terms  such  as  these:  .  .  , 
'  The  defendants  claim  a  right,  under 
a  general  warrant  and  bad  prece- 
dents, to  force  houses,  break  open 
escritoires,  seize  papers,  where  no 
inventory  is  made  of  things  taken, 
and  no  persons'  names  specified  in 
the  warrant,  so  that  messengers  are 
to  be  vested  with  a  discretionary 
power  to  search  wherever  their  sus- 
picions or  their  maUce  may  lead 
them.  As  to  the  damages,  I  con- 
tinue of  the  opinion  that  the  jury 
are  not  limited  to  the  injury  re- 
ceived. Damages  are  designed,  not 
only  as  a  satisfaction  to  the  injured 
person,  but  likewise  as  a  jDunish- 
ment  to  the  guilty,  and  as  proof  of 
the  detestation  in  which  the  wrong- 
ful act  is  held  by  the  jury.'  Lord 
Campbell  himself  italicises  the  last 
lines  in  his  quotation,  and  thereby 


T2G 


EXEMPLAET   DAMAGES. 


ExEMPLAKY    DAMAGES     CONFINED    TO    LIBERAL    COMPENSATION   IN" 

SOME  STATES. —  In  soiTie  jurisdictions,  the  term  exemplary  dam- 
ages is  in  use,  but  signifies  only  a  liberal  extension  of  compensa- 
tion to  the  injured  party,  in  view  of  the  bad  motive  which 
induced,  or  characterized  the  wrong,  the  mental  distress  result- 
ing therefrom,  and  the  remoter  pecuniary  consequences.     The 


points  to  that  as  the  '  intemperate 
language,'  into  which  Lord  Camden 
had  been  led  by  the  '  immense  popu- 
larity '  acquired  by  the  discharge  of 
Mr.  Wilkes,  a  member  of  parlia- 
ment, from  his  arrest  under  a  gen- 
eral warrant  for  publishing  a  sedi- 
tious libel.  The  discharge  was  based 
upon  his  privilege,  as  member  of 
parliament,  to  be  free  from  arrest 
in  aU  cases  except  treason,  felony 
and  actual  breach  of  tlie  peace. 
Upon  the  reassembling  of  parlia- 
ment after  Mr.  Wilkes'  discharge, 
both  houses  declared  (as  if  in  con- 
demnation of  Lord  Camden's  de- 
cision), '  that  privilege  of  parliament 
does  not  extend  to  the  case  of  writ- 
ing or  pu.blishing  seditious  libels.' 
It  was  after  this  resolution  of  parlia- 
ment, and  in  Mr.  Wilkes'  own  action 
for  that  particular  arrest,  that  Lord 
Chief  Justice  Pratt  is  said,  by  Lord 
Campbell,  to  have  used  the  language 
quoted;  but  in  a  note  to  page  14  of 
the  Lives  of  the  Lord  Chancellors, 
the  case  of  Beardman  v.  Carrington, 
2  Wils.  244,  is  cited.  Now,  if  Lord 
Campbell,  who  writes  of  Lord  Cam- 
den as  'one  of  the  brightest  orna- 
ments of  my  profession,  and  of  my 
party,'  can  so  unequivocally  con- 
demn this  particular  language  as 
intemperate  and  unsound;  ?^nd  when 
the  circumstances  under  which  it 
was  uttered  are  so  clearly  indicative 
of  a  controversy  between  the  king 
and  parliament  on  the  one  hand, 
and  the  court  and  people  on  the 
other,  as  would  naturally  (if  not 
properly)   stimulate   to   the  use  of 


strong  and  partisan  language,  is  it 
reasonable  to  hold  upon  this  authoi*- 
ity  alone,  that  such  language  is  the 
law  of  the  land,  and  ought  to  be 
given  as  such,  by  way  of  instruction 
to  the  jury  ?  It  should  also  be  borne 
in  mind,  that  even  Lord  Camden 
himself  did  not  give  this  language 
in  instructions  to  the  jury,  but  only 
used  it  in  argument  to  sustain  bis 
judgment  and  refusal  to  set  aside 
the  verdict  on  the  gi'ound  of  excess- 
ive damages.  Without  passing  just 
here  upon  the  correctness  of  other 
portions  of  the  instruction,  we  think 
that  after  telling  the  jury  that  they 
may  compensate  the  plaintiff,  pun- 
ish the  defendant  and  protect  so- 
ciety, and  not  scrutinize  these 
amounts  very  closely,  that  they  may 
also  add  such  further  sum  as  will 
manifest  the  detestation  in  which 
the  act  is  held  by  them,  is,  to  speak 
mytliologically,  '  piling  Pelion  and 
Ossa  on  Olympus,'  and  is  without 
good  fovmdation,  as  we  think,  in 
jDrinciple  or  precedent." 

As  to  the  right  of  the  jury  to  give 
damages  by  way  of  punishment,  he 
continued:  "He  would  be  a  bold 
jurist  who,  in  view  of  these  author- 
ities [over  one  hundred  different 
cases  which  the  learned  judge  said 
he  had  carefully  examined,  and  a 
majority  of  which  decide  that  vin- 
dictive or  punitory  damages  may  be 
given  in  cases  where  the  element  of 
fraud  or  oppression  is  shown],  should 
hold  that  the  doctrine  of  exemj^lary, 
vindictive  or  punitive  damages,  had 
no  foundation    in    law.     Since  the 


EXEMPLAKY    DAMAGES. 


V27 


courts  here  accept,  in  the  main,  the  views  of  Prof.  Greenleaf. 
He  says :  "  Damages  are  given  as  a  compensation,  recompense,, 
or  satisfaction,  to  the  plaintiff  for  an  injury  actually  received 
by  him  from  the  defendant.  They  should  be  precisely  com- 
mensurate with  the  injury;  neither  more  nor  less;  and  this, 
whether  it  be  to  his  person  or  estate.     All  damages  must  be  the 


time  of  the  controversy  between 
Professor  Greenleaf  and  Mr.  Sedg- 
wick (1847)  on  this  subject,  a  lai'ge 
majority  of  the  appellate  courts  in 
this  countrj^  have  followed  the  doc- 
trine advocated  by  Mr.  Sedgwick  in 
that  controversy;  and  our  own  su- 
preme court  has  expressfy  denied, 
on  the  authorities,  the  correctness  of 
Professor  Greenleaf 's  views  (Funk  & 
-Co.  V.  Coe,  4  G.  Greene,  555);  and  in 
the  same  case  expressed  the  opinion 
that,  under  certain  circumstances, 
exemplary  damages  should  be  enter- 
tained. .  .  .  Cochrane  v.  Miller, 
13  Iowa,  128;  Thomas  v.  Isett,  1  G. 
Greene,  470;  Denslow  v.  Van  Horn, 
16  Iowa,  476;  King  v.  Palmer,  18 
Iowa,  377;  Rev.  St.  1860,  §§  2112, 
3113,  3183. 

"It  seems  that  the  terms  exem- 
plary, vindictive,  punitive,  imagi- 
nary, presumptive,  speculative,  and 
smart  money,  are  used  in  the  law  as 
synonymous;  and  the  first  three 
were  expressly  held  in  Chiles  v. 
Drake  (2  Met.  Ky.  146)  to  be 
synonymous  terms.  "While  these 
words  certainly  have  a  literal  or 
technical  difference  of  signification, 
as  defined  by  lexicographers,  yet 
they  have  been  too  long  used  as 
synonymous  by  legal  wi-iters  to  now 
justify  the  making  of  any  distinc- 
tion of  meaning,  in  construing  the 
decisions  as  oi)inions  of  jixlg.^s,  or 
other  law  writings,  in  which  they 
are  used. 

"  Tlie  controversy  on  this  subject 
between  Professor  Greenleaf  and 
JVIr.  Sedgwick  may,  perhaps,  after  all 


the  attention  and  discussion  it  has 
excited,  be  found  to  be  a  controversy 
as  to  the  terminology  of  the  law, 
rather  than  as  to  the  extent  of  the 
right  of  recovery  or  real  measure  of 
damages.  Professor  Greenleaf  holds 
that  while  the  plaintiff  can  only  re- 
cover compensation,  he  is  not  con- 
fined to  the  proof  of  actual  pecun- 
iaiy  loss,  but  that  the  jury  may  take 
into  consideration  every  circum- 
stance of  the  act  which  injuriously 
affected  the  plaintiff,  not  only  in  his 
property,  but  in  his  person,  his  peace 
of  mind,  his  quiet  and  sense  of  se- 
curity, in  the  enjoyment  of  his 
rights;  in  short,  his  happiness.  But 
it  must  affect  his  happiness,  not  his 
neighbors':  and,  therefore,  to  this 
question  alone  the  jury  should  be  re- 
stricted. Sedg.  on  Meas.  of  Dam. 
609.  While  Mr.  Sedgwick  holds  that 
whenever  the  elements  of  fraud, 
malice,  gross  negligence,  or  oppres- 
sion, mingle  in  the  controversy,  the 
law,  instead  of  adhering  to  the  sys- 
tem, or  even  the  language  of  com- 
pensation, adopts  a  whollj'  different 
rule.  It  permits  the  jury  to  give 
what  it  terms  punitory,  vindictive, 
or  exemplary  damages;  in  other 
words,  it  blends  together  the  interests 
of  society  and  the  aggrieved  indi- 
vidual, and  gives  damages,  not  only 
to  recompense  the  sufferer,  but  to 
imnish  the  offender.  Sedg.  on  Meas. 
of  Dam.  623. 

"  Tlie  differences  arises,  not  in  the 
statement  of  the  respective  proposi- 
tions, but  in  the  restatement  or  con- 
struction which  each  puts  upon  the 


728 


EXEMPLARY    DAMAGES. 


result  of  the  injury  complained  of.  It  is  frequently  said  that,  in- 
actions  ex  delicto^  evidence  is  admissible  in  aggravation  or  in 
mitigation  of  damages.  But  this,  it  is  conceived,  means  noth- 
ing more  than  that  evidence  is  admissible  of  facts  and  circum- 
stances which  go  in  aggravation  or  in  mitigation  of  the  injury 
itself.     The  circumstances  thus  proved  ought  to  be  those  only 


rule  stated;  'in  short,' says  Professor 
Greenleaf,  '  Ms  happiness;'  while 
Mr.  Sedgwick  says,  '  in  other  words, 
blends  together  the  interest  of  so- 
ciety and  the  aggrieved  individual,' 
etc.  But  some  of  the  courts,  which 
follow  the  rule  as  stated  by  Mr. 
Sedgwick,  place  a  construction  upon 
it  not  at  all  in  antagonism  to  the 
rule  as  stated  by  Mr.  Greenleaf.  In 
Chiles  V.  Drake,  2  Met.  Ky.  146,  the 
court  say,  'every  recoveiy  for  per- 
sonal injury,  with  or  Avithout  vin- 
dictive damages,  operates  in  some 
degree  as  a  punishment,  but  it  is  the 
punishment  which  results  from  the 
redress  of  a  private  wrong,  and  does 
not,  therefore,  violate  the  meaning 
or  spirit  of  the  constitution,'  pro- 
hibiting more  than  one  punishment 
for  the  same  offense.  .  .  .  The 
damages  are  allowed  as  compensa- 
tion for  the  loss  sustained,  but  the 
jury  are  permitted  to  give  exem- 
plary damages  on  account  of  the 
nature  of  the  injury.  It  is,  there- 
fore, the  increase  of  the  damages  re- 
sulting from  the  character  of  the 
defendant's  conduct  that  is  denomi- 
nated punitive  or  vindictive. 

"  Under  the  rule  as  stated  by  Mr. 
Greenleaf,  this  increase  of  damages 
resulting  from  the  nature  of  the  de- 
fendant's conduct,  showing  fraud, 
malice  or  oppression,  is  given  to  the 
plaintiff  as  a  compensation  for  the 
invasions  of  his  '  peace  of  mind,  his 
quiet  and  sense  of  security  in  the 
enjoyment  of  his  rights; '  while  un- 
der the  rule  as  stated  by  Mr.  Sedg- 
wick, this  increase  is  given  as  '  puni- 


tory, vindictive  or  exemplary  dam- 
ages.' In  either  case,  and  under 
either  rule,  the  amount  given  by  the 
jury  is  '  imaginary, '  '  presumptive,' 
or  '  speculative,'  with  them;  that  is, 
the  jury  have  not,  and,  in  the 
nature  of  things,  cannot  have,  iit 
either  case,  any  pecuniary  standard 
by  which  to  measure  the  amount  of 
compensation  or  damages  to  which 
the  plaintiff  is  entitled. 

"  It  is,  perhaps,  true,  that  the- 
broad  and  general  language  of  the 
rule,  as  stated  by  Mr.  Sedgwick,, 
tends  more  to  convey  to  a  jury  the 
idea  of  their  unlimited  and  unre- 
strained power,  jurisdiction  or  con- 
trol over  the  amount  of  their  ver- 
dict, than  the  rule  as  stated  by  Mr. 
Greenleaf;  and  that  under  that  rule,, 
jurors  would  more  frequently  re- 
turn verdicts  based  more  or  less- 
upon  their  passions  and  prejudices,, 
than  under  the  other  rule.  For  in- 
stance, the  instiaiction  as  given  in. 
this  case,  omitting  the  objectionable 
clause  heretofore  considered,  would 
tend  very  strongly  to  convey  to  the- 
jury  the  idea  of  complete  control 
over  the  amount  of  their  verdict,, 
unrestrained  by  any  legal  rule  what- 
ever. But,  sui:)pose  they  had  been 
instructed  that,  in  estimating  the 
amount  of  plaintiff's  damages,  they 
would  ascertain  and  give:  First,  the 
actual  pecuniary  loss  directly  sus- 
tained, as  the  value  of  the  clothing- 
destroyed.  Second,  the  consequential 
pecuniary  loss,  as  tlie  value  of  the 
time  lost  by  the  plaintiff,  the  ex- 
penses, if  any,  incurred  for  medi- 


EXEMPLARY    DA3IAGES. 


729 


which  belong  to  the  act  complained  of.  The  plaintiff  is  not 
justly  entitled  to  receive  compensation  beyond  the  extent  of  his 
injury,  nor  ought  the  defendant  to  pay  to  the  plaintiff  more 
than  the  plaintiff  is  entitled  to  receive.  Injuries  to  the  pereon 
or  to  the  reputation  consist  in  the  pain  inflicted,  whether  bodily 
or  mental,  and  in  the  expenses  and  loss  of  property  which  they 
occasion.  The  jury,  therefore,  in  the  estimation  of  damages, 
are  to  consider  not  only  the  direct  expenses  incurred  by  the 
plaintiff,  but  the  loss  of  his  time,  his  bodily  sufferings,  and,  if 
the  injury  was  wilful,  his  mental  agony  also;  the  injury  to  his 
reputation,  the  circumstances  of  indignity  and  contumely  under 
which  the  wrong  was  done,  and  the  consequent  public  disgrace 
to  the  plaintiff,  together  with  any  other  circumstances  belong- 
ing to  the  wrongful  act  and  tending  to  the  plaintiff's  discomfort,"  ^ 
In  the  late  j^ew  Hampshire  case,  already  referred  to,  Foster, 
J.,  said  his  review  of  the  cases  compels  the  conclusion  that  the 
modern  erroneous  idea  of  exemplary  damages  "  originated  in, 
and  is,  in  fact,  the  same  thing  as  damages  for  wounded  feel- 
ings, as  distinguished  from  damages  for  an  injury  to  the  person 

cine,  physician's  bills,  compensation  the  same  time,  would  render  a  ver- 
to  the  attendant,  and  board  while  diet  which  would  amply  compensate 
sick,  or  the  like.  Third,  the  physical  for  the  injury  in  every  phase  and 
suffering  consequent  upon  the  in-  manner  wherein  it  could  operate? 
jury,  including  any  temporary,  pro-  And,  indeed,  it  seems  to  us  that, 
tracted  or  permanent  deformity,  under  such  an  instriiction,  the  ver- 
disabUity  or  disfiguring,  as  by  scars,  diet  would  be  more  likely  to  approx- 
or  the  like.  Fourth,  the  mental  imate  to  justice,  and  to  exclude  pas- 
anguish,  loss  of  honor  and  sense  of  sion  and  prejudice,  than  under  the 
shame,  caused  by  the  act  of  the  de-  loose  and  general  instruction  as 
fendant,  as  by  the  exposure  of  his  given  by  the  court  in  this  case,  and 
naked  person  to  the  public,  the  sense  jvistified  by  the  rule  laid  down  by 
of  wrong  inflicted,  insult  effected,  Mi\  Sedgwick,  and  sustained  by  the 
the  degradation  felt,  and  the  like,  general  current  of  the  authorities. 
Fifth,  the  injury  to  the  business,  And  yet  it  is  doubtless  tnie,  that 
reputation,  social  standing,  and  the  such  an  instruction  might  mislead 
like.  Is  it  not  unreasonable  to  sup-  and  confound  a  jury;  and  they 
pose  that  such  an  instruction  would  would  not,  in  any  event,  have  any 
more  certainly  exclude  passion  and  pecuniary  standard  by  which  to 
prejudice,  and  that  the  jury  would  measm-e  the  damages  under  the 
feel  themselves  more  constrained  to  third,  fourth  and  fifth  subdivisions 
limit  their  verdict  to  compensa-  of  the  instructions,  as  specified." 
tion  to  the  plaintiff  for  the  injuries  12  Greenlf.  Ev.  g  267. 
inflicted  by  the  defendant,  and,  at 


73U  EXEMPLAKY    DAMAGES. 

or  property.  Damages  for  lacerated  sensibilities,  insulted 
honor,  tyrannical  oppression,  and  so  forth,  being  much  em- 
phasized, and  often  being  the  principal  damage  suffered  by  the 
plaintiif,  and  language  being  loosely  used,  and  not  preserving 
the  true  distinction  carefully,     .  .     it  finally  came  to  be  un- 

derstood that  damages  might  be  given  in  a  civil  suit  as  a  pun- 
ishment for  an  offense  against  the  public;  an  idea  that  is 
certainly  not  plainly  declared  in  the  early  cases.  ...  I  venture 
to  say  that  no  case  will  be  found  in  which  a  judge  explicitly  told 
a  jury  that  they  might,  in  an  action  for  assault  and  battery, 
give  the  plaintiff  four  damages,  viz. :  1.  For  loss  of  property,  or 
for  injury  to  his  apparel,  loss  of  labor  and  time,  expenses  of 
surgical  assistance,  nursing,  etc.  2.  For  bodily  pain.  3.  For 
mental  suffering ;  and  4.  For  punishment  of  the  defendant's 
crime.  But  a  critical  examination  of  the  cases  will  show,  as  I' 
believe,  that  this  fourth  item  is,  in  fact,  comprehended  in  the 
third,  but  has  grown  into  and  become  a  separate  and  additional 
item,  by  inconsiderate,  if  not  intemperate  and  angry  instruc- 
tions, given  to  juries,  when  the  court  was  too  much  incensed  by 
the  exhibition  of  wanton  malice,  revenge,  insult  and  oppression, 
to  weigh  with  coolness  and  deliberation,  the  meaning  of  lan- 
guage previously  used  by  other  judges;  and  instructions 
prompted  by  impulses  of  righteous  indignation,  swift  to  admin- 
ister supposed  justice  to  a  guilty  defendant,  but  expressed  with 
too  little  caution ;  and  Vv^ithout  pausing  to  reflect  that  the  com-t 
was  thus  encouraging  the  jury  to  give  the  plaintiff  more  than 
he  was  entitled  to ;  to  give  him,  in  fact,  as  damages,  the  avails 
of  a  fine  imposed  for  the  vindication  of  the  criminal  law,  and 
for  the  sake  of  public  example."  ^ 

In  a  subsequent  case  in  the  same  state,^  the  court  approve 
the  foregoing  case,  and  say,  by  Gushing,  J. :  "  Ordinarily,  in 
actions  for  torts,  the  rule  of  damages  is  compensation  in 
money  for  the  damage  sustained  by  reason  of  the  natural  and 
obvious  consequences  of  the  wrongful  act.  .  .  .  "When, 
however,  the  element  of  malice  enters  into  the  wrong,  the  rule 
of  damages  is  different  and  more  liberal.  It  is  equally  well 
settled,  that  in  such  cases  there  enters  into  the  question  of  dam- 

iFay  V.  Parker,  53  N.  H.  342.  «Bixby  v.  Dunlop,  56  N.  H.  456. 


EXEMPL^UIY    DAMAGES,  TSl 

ages,  considerations  which  cannot  be  made  the  subject  of  exact 
pecuniary  compensation, —  such  as  were  described  in  the  charge 
of  the  court  as  mental  distress  and  vexation,  what  in  common 
language  might  be  spoken  of  as  offenses  to  the  feehngs,  insult, 
degradation,  offenses  against  honest  pride,  and  all  matters 
Avhich  cannot  arise  except  in  those  wrongs  which  are  attended 
with  malice.  ...  In  the  endeavor  to  bring  such  consider- 
ations within  the  grasp  of  the  law,  and  as  far  as  possible  to 
compensate  such  "\\Tongs  by  damages,  courts  have  used  the 
terms  punitory,  vindictive,  exemplary.  I  do  not  think  the  cases 
show,  in  so  far  as  I  have  examined  them,  that  this  has  ever 
been  considered  as  punisliing  an  offense  against  the  criminal 
law  of  the  state,  but  simply  as  a  mode  of  stating  the  matter  so 
as  to  bring  this  almost  intangible  subject  within  the  grasp  of 
the  law.  Whenever  the  law  is  so  held  that  the  jury  are  in- 
structed that  they  may  leave  the  domains  of  actual  pecuniary 
value,  and  go  into  speculations  in  regard  to  compensation  for 
the  wounded  feelings,  the  offended  pride,  the  outraged  sense  of 
decency  and  delicacy,  they  have  come  into  the  domain  of  what 
the  law  has  been  accustomed  to  call  punitive,  vindictive,  or 
exemplary  damages.  It  is  of  little  consequence  under  what 
name  it  goes.  The  substance  of  the  thing  must  be  retained, 
unless  a  very  large  class  of  cases  are  to  be  stricken  from  the  hst 
of  actionable  wrongs.  .  .  .  According  to  these  views,  it  is 
incorrect  to  separate  what  is  caUed  actual  damage  from  what  is 
called  exemplary  damage.  The  rule  is  not,  as  I  understand  it, 
to  instruct  the  jury  in  the  first  place  to  determine  the  actual 
money  damage  which  the  plaintiff  has  sustained,  and  then 
further  instruct  the  jury  that,  if  they  find  that  the  defendant 
has  been  mahcious,  they  may  give  another  se]^arate  sum  in 
damages  by  way  of  example,  or  for  the  sake  of  punishment. 
The  true  rule,  as  I  understand  it,  is  to  instruct  the  jurj--  that,  if 
they  find  the  defendant  has  been  malicious,  the  rule  of  damages 
will  be  more  liberal ;  that,  instead  of  awarding  damages  only 
for  those  matters  which  are  capable  of  exact  pecuniary  valua- 
tion, they  may  take  into  consideration  all  the  circumstances  of 
aggravation, —  the  msults,  offended  feelings,  degradation  and  so 
on, —  and  endeavor,  according  to  their  best  judgment,  to  award 
such  damages,  by  Avay  of  compensation  or  indenmit}',  as  the 


732  EXEMPLARY    DAMAGES. 

plaintiff,  on  the  whole,  ought  to  receive,  and  the  defendant 
onght  to  pay." 

In  Massachusetts,  the  same  doctrine  appears  to  be  held; 
compensation  is  allowed  to  be  fixed  by  considering  all  those 
circumstances  which  are  generally  the  basis  of  exemplary  dam- 
ages ;  but  there  seems  to  be  no  countenance  given  to  the  infliction 
of  additional  damages  for  the  punishment  of  the  offender.^  In 
an  action  by  a  father  for  harboring  and  secreting  his  minor 
daughter,  and  persuading  her  to  remain  absent  from  his  family 
and  service  without  his  consent,  it  was  held  that  he  was  entitled 
to  recover  for  mental  suffering  caused  by  the  injury,  though  it 
was  held  error  to  admit  evidence  thereof,  distinct  from  and  in 
addition  to  that  which  shows  the  nature  and  extent  of  the 
injur}^^  If  there  is  a  wantonness  or  mischief,  causing  addi- 
tional bodily  or  mental  damage,  in  the  injurious  act  of  a  servant 
within  the  scope  of  his  employment,  that  wantonness  or  mischief 
will  enhance  the  damages  against  the  master.^ 

When  the  gist  of  the  action  is  the  breaking  and  entering  the 
plaintiff's  close,  the  circumstances  which  accompany  and  give 
character  to  the  trespass,  may  always  be  shown  either  in  aggra- 
vation or  mitigation.*  He  who  is  guilty  of  a  wilful  trespass,  or 
one  characterized  by  gross  carelessness,  and  want  of  ordinary 
attention  to  the  rights  of  another,  is  bound  to  make  full  com- 
pensation. Under  such  circumstances,  the  natural  injury  to  the 
feelings  of  the  plaintiff  may  be  taken  into  consideration  in 
trespasses  to  real  estate,  as  well  as  in  other  actions  of  tort.  Acts 
of  gross  carelessness,  as  well  as  those  of  wilful  mischief,  often 
inflict  a  serious  wound  upon  the  feehngs,  when  the  injury  done 
to  property  is  comparatively  trifling.  JSTo  rule  of  law  requires 
the  mental  suffering  of  the  plaintiff,  or  the  misconduct  of  the 
defendant,  to  be  disregarded.  The  damages  in  such  cases  are 
enhanced,  not  because  vindictive  or  exemplary  damages  are 
allowable,  but  because  the  actual  injury  is  made  gTeater  by  its 
wantonness.^     In  one  case.  Chief  Justice  Shaw  said:    "It  is 

1  Smith  V.  Holcomb,  99  Mass.  552;  Bracegirdle  v.  Orforcl,  2  M.  &  S.  77; 
Austin  V.  Wilson,  4  Cush.  273.  Merest  v.   Harvey,    5     Taunt.   442; 

2  Stowe  V.  Haywood,  7  Allen,  118;  Brewer  v.  Dew,  11  M.  &  W.  625, 
Phillips  V.  Hoyle,  4  Gray,  568.  5  Meagher  v.  Driscoll,  supra;  Fille- 

3Hawes  v.  Knowles,  114  Mass.  518.      brown  v.  Hoai',  124  Mass.  580. 
4  Meagher  v.  Driscoll,  99  Mass.  281; 


EXEMPLARY    DAMAGES.  733 

immaterial,"  speaking  of  the  particular  case,  "wliether  the 
proof  establishes  gross  negligence,  or  only  a  want  of  ordinary 
care,  on  the  part  of  the  defendant.  In  either  case,  the  plaintiff 
would  be  entitled  to  recover  in  damages  the  actual  amount  of 
loss  sustained,  and  no  more,  in  the  form  of  vindictive  damages 
or  otherwise."  ^ 

In  Nebraska,  the  court  say  in  a  recent  case :  ^  "  To  this  court 
the  question  of  punitive,  vindictive,  or  exemplary  damages  is 
iahula  raza,  it  now  being  presented  for  the  first  time.  And 
being  thus  caUed  upon  to  lay  the  foundation  for  future  adjudi- 
cations on  this  subject  in  this  state,  we  are  warned  to  avoid  a 
line  ■  of  construction  which  seems  to  have  been  the  fruitful 
source  of  so  much  difficulty  otherwhere,  and  to  follow  those 
precedents  and  authorities  which  are  most  satisfactory  to  our 
judgment,  and  which  do  not  seem  to  have  led  to  any  embar- 
rassing comphcations  in  their  administration."  And  the  court 
disapproved  an  instruction  to  a  jury,  that,  in  addition  to  com- 
pensating the  plaintiff  for  injury  actually  committed,  they  might 
assess  other  damages  of  a  punitive  or  exemplary  character.^ 

In  Indiana,  the  courts  have  held  the  same  doctrine,  that  the 
jury  have  no  right  to  give  such  additional  damages  "  as  would 
tend  to  prevent  such  conduct,  and  give  peace  and  security  to 
private  rights  and  the  community  in  general."  *  In  a  late  case 
in  that  state,  Biddle,  J.,  said :  "  The  doctrine  of  exemplary  or 
punitive  damages  rests  upon  a  very  uncertain  and  unstable 
basis.  It  is  almost  equivalent  to  giving  the  jury  the  power  to 
make  the  law  of  damages  in  each  case ',  and  in  a  case  where  the 
defendant  is  a  commanding,  popular,  influential  person,  and  the 
plaintiff  of  the  opposite  character,  and  the  local  and  temporary 
excitement  or  prejudice  of  the  time  happens  to  be  in  favor  of 
the  defendant  and  against  the  plaintiff,  the  jury  is  apt  to  be 
reluctant  in  giving  even  pecuniary  compensation,  without  add- 

1  Barnard  v.  Poor,  21  Pick.  380.  Millison  v.  Hoeh,   17  Ind.  227;  Cox 

2Boyer  v,  Barr,  8  Neb.  68.  v.  Vanderkleed,  21  Ind.  164;  Moore 

3  See  Quigley  v.  C.  P.  R.  R.  Co.  11  v.  Crose,  43  Ind.  30;  Ziegler  v.  Pow- 

Nev.  376.  ell,  54  Ind.  173;  Koeruo-  v.  Oberley, 

^Taber    v.    Hutson,    5    Ind.    322;  56  Ind.  284, 

Marford  v.  Woodworth,  7  Ind.  83; 


734:  EXEMPLARY    DAMAGES. 

ing  anything  by  way  of  exemplary  or  punitive  damages; 
while,  in  a  case  in  which  the  character  of  the  parties  and  the 
circnuistances  are  reversed,  the  jury  will  be  hkely  to  push 
their  power  to  an  unwarranted  and  unconscionable  extent,  dan- 
gerous to  justice  and  the  security  of  settled  rights.  Besides,  a 
principle  that  allows  an  individual  to  put  the  money  assessed 
against  another  individual,  as  punishment  or  a  warning  ex- 
ample, into  his  private  pocket,  when  he  is  not  entitled  to  it, 
whatever  public  advantages  it  may  have,  does  not  seem  to  be 
thoroughly  sound.^ 

In  Michigan,  also,  the  element  of  punishment  seems  to  be 
rejected.  Mr.  Justice  Campbell  stated  the  question  and  defined 
the  accepted  doctrine  with  great  clearness  and  force  in  a  libel 
case.  He  said :  "  It  ig  in  connection  with  the  various  degrees 
of  blameworthiness  chargeable  on  wrongdoers,  that  the  dis- 
cussions have  arisen  on  the  subject  of  vindictive  damages,  which, 
inasmuch  as  they  rest  upon  actual  fault,  are  by  some  authori- 
ties said  to  be  designed  to  punish  the  wrong  intent ;  while,  ac- 
cording to  others,  the  damages  usually  so  called,  are  only  meant 
to  recompense  the  sense  of  injury  which  is,  in  human  experi- 
ence, always  aggravated  or  lessened  in  proportion  to  the  degree 
of  perversity  exhibited  by  the  offender.  While  the  term  ex- 
emplary or  vindictive  damages  has  become  so  fixed  in  the  law 
that  it  may  be  difficult  to  get  rid  of  it,  yet  it  should  not  be  al- 
lowed to  be  used  so  as  to  mislead;  and  we  think  the  only 
proper  application  of  damages,  beyond  those  to  the  person, 
property  or  reputation,  is  to  make  reparation  for  the  injury  to 
the  feelings  of  the  person  injured.  This  is  often  the  greatest 
wrong  which  can  be  inflicted ;  and  injured  pride  or  affection 
may,  under  some  circumstances,  justify  very  heavy  damages. 
.  .  .  The  injury  to  the  feelings  is  only  allowed  to  be  con- 
sidered in  those  torts  which  consist  of  some  voluntary  act  or 
very  gross  neglect,  and  practically  on  the  degree  of  fault 
evinced  by  all  the  circumstances.  It  has  been  very  wisely  left 
to  the  jury  to  determine  each  case  upon  its  own  surroundings, 
because  the  only  safe  rule  of  damages  in  matters  of  feeling,  is 

1  Stewart  v.  Maddox,  63  Ind.  57. 


EXEMPLARY    DA:yiAGES. 


Y35 


to  give  wliat,  to  tlie  ordinary  apprehension  of  impartial  men, 
•would  seem  proportionate  to  an  injury  which  must  be  measured 
by  the  instincts  of  our  common  humanity."  ^ 


1  Detroit  Daily  Post  Co.  v.  Mc- 
Artluir,  16  Mich.  447. 

Some  years  later  the  same  learned 
judge  again  discussed  this  subject. 
In  W(ilch  V.  Ware,  32  Mich.  84,  he 
said:  "  The  common  sense  of  man- 
kind has  never  failed  to  see  that  the 
injury  done  by  a  wilful  wrong  to 
person  or  reputation,  and  in  some 
cases  to  property,  cannot  be  meas- 
ured by  the  consequent  loss  in 
money.  A  person  assaulted  may 
not  be  disabled,  or  even  disturbed  in 
his  business,  and  may  not  be  put  to 
any  outlay  in  repairs  or  medical  ser- 
vices. He  may  not  be  made  poorer 
in  money,  directly  or  consequen- 
tially. He  may  incur  no  pecuniary 
damage  whatever.  And  it  is  very 
clear  that  the  sliame  and  mental 
anxiety  and  suffering  or  indignation 
consequent  on  such  a  wrong  are  not 
capable  of  a  money  measurement. 
No  one  would  avow  in  advance  that 
he  would  be  Avilling  for  a  given  sum 
to  meet  that  experience;  and  no  one 
who  should  seek  it  as  a  means  of 
putting  money  into  his  pocket  would 
be  likely  to  receive  compensation  at 
the  hands  of  a  jury. 

"  So  a  person  who  is  struck  down 
by  a  blow  from  the  arms  of  a  wind- 
mill may  be  much  more  seriously 
hurt  than  by  a  blow  from  a  fist  or  a 
whip.  But  no  one  would  dream  of 
comparing  these  injuries  by  their 
physical  effect. 

"When  the  law  gives  an  action 
for  wilful  wrongs,  it  does  it  on  the 
ground  that  the  injured  person 
ought  to  receive  pecuniary  amends 
from  the  wrongdoer.  It  assumes 
that  every  such  wrong  brings  dam- 
age upon  the  suffei-er,  and  that  the 


principal  damage  is  mental  and  not 
physical.  And  it  assumes  further, 
that  this  is  actual,  and  not  meta- 
physical damage,  and  deserves  com- 
pensation. When  this  is  once  rec- 
ognized, it  is  just  as  clear  that  the 
wilfulness  and  wickedness  of  the 
act  must  constitute  an  important 
element  in  the  computation,  for  the 
plain  reason  that  we  all  feel  our  in- 
dignation excited  in  direct  propor- 
tion with  the  malice  of  the  offender, 
and  that  the  wrong  is  aggravated 
by  it. 

' '  If  actual  damage  is  not  confined 
to  pecuniary  consequences,  and  can- 
not be  measured  by  a  money  stand- 
ard, all  redress  in  damages  must 
partake  of  a  punitory  character  to 
some  extent;  and  the  line  between 
actual  and  what  are  called  exem- 
plary damages  cannot  be  drawn 
with  much  nicety.  In  evexj  such 
case,  the  jury  are  compelled  to  de- 
termine from  their  own  sense  of  jus- 
tice, and  their  knowledge  of  human 
nature,  what  the  amount  of  damages 
should  be.  When  the  amount  to  be 
recovered  must  in  all  cases  rest  in 
their  fair  and  deliberate  discretion, 
the  law  can  give  them  no  precise  in- 
structions. It  aims  to  do  justice 
by  directing  them  to  distinguish 
between  provoked  grievances  and 
those  which  are  unprovoked,  or  for 
which  the  provocation  is  in  great 
disproportion  to  the  wrong,  making 
adequate  compensation  in  all  cases, 
but  giving  heavier  damages  in  all 
cases  where  the  wrong  is  aggravated 
by  bad  motives  or  malice.  It  would 
be  of  A-ery  little  use  to  present  the 
law  to  a  jury  upon  any  tliein-etical 
basis.     The  rule  is  intelligible,  and 


T3G 


EXEMPLAKY    DAMAGES. 


Difference  between  exemplary  damages  for  compensation", 
AND  for  that  and  PUNISHMENT. —  TliG  difference  between  allow- 
ino-  all  the  circumstances  belonging  to  a  tort,  tending  to  show 
that  it  was  induced  or  aggravated  by  malice,  to  be  shown  and 
considered  merely  for  more  ample  compensation  to  the  party 


has  not  been  found  to  work  badly  in 
practice.  But  whether  this  rule 
involves  merely  comiDensation,  or 
whether  it  is  based  on  a  theory  of 
punishment,  is  not  very  important 
in  practice,  and  does  not  come 
within  the  domain  of  law,  so  long 
as  the  jury  are  obliged  to  estimate 
by  their  own  good  jvidgment. 

"  It  is  not  an  open  question  in  this 
state,  that  damages  are  to  be  given 
not  only  for  grievances,  beyond  pe- 
cuniary losses,  but  also  in  accord- 
ance with  the  malice  of  the  offender." 
Previous  cases  in  that  state,  illus- 
trating the  general  doctrine  con- 
cerning aggravation  of  damages  by 
wilful  and  wanton  misconduct,  and 
the  powers  and  duties  of  jurors  in 
actions  of  tort,  are  cited.  Teft  v. 
Windsor,  17  Mich.  486;  Warren  v. 
Cole,  15  Mich.  265;  Brushaber  v. 
Stegemann,  22  Mich.  266;  Swift  v. 
Appleton,  23  Mich.  252;  Leonard 
V.  Pope,  27  Mich.  145;  Sheahan  v. 
Barry,  27  Mich.  217. 

In  the  later  case  of  Elliot  v.  Van 
Buren,  33  Mich.  49,  Judge  Campbell 
had  to  deal  with  this  subject  again 
in  an  action  by  a  female  for  assault 
and  battery,  aggravated  by  an  al- 
leged attempt  to  ravish.  He  said: 
"This  is  nothing  more  than  trespass 
for  an  assault  and  battery.  There  is 
110  such  thing  as  a  private  action  for 
a  crime  as  such.  The  civil  grievance 
here  charged  was  an  assault,  de- 
scribed, as  was  proper,  with  its  at- 
tendant circumstances  of  enormity, 
including  attempt  to  ravish.  This, 
however,  does  not  make  it  differ 
from  an  action  for  a  lighter  griev- 


ance, except  as  showing  a  heavier 
ground  of  complaint,  for  which,  if 
made  out,  the  damages  would  be 
likely  to  be  larger." 

Further  on  he  says:  "There  was 
no  dispute  but  that  the  plaintiff  be- 
low received  some  blow  or  blows,  or, 
what  was  equivalent,  was  pushed 
with  more  or  less  force  by  the  de- 
fendant. If  this  was  done  by  him 
as  the  first  assailant,  he  was  unques- 
tionably guilty  of  an  assault.  And 
as  an  assault  cannot  very  weU  be 
purely  accidental,  and  is  not  pi*e- 
tended  to  have  been  anj^thing  but 
intentional,  if  committed  at  all,  it 
was  such  an  act  as  must  be  regarded 
as  wilful,  whether  serious  or  trivial. 
Being  so,  it  authorized  the  jury  to 
give  such  damages  as  would,  in 
their  sound  judgment,  be  required 
by  the  character  and  extent  of  its 
atrocity.  If  the  jury  believed  that 
there  was  any  assault  at  all,  they 
could  not  help  believing  it  was  an 
indecent  one,  if  not  felonious,  be- 
cause there  was  no  proof  of  any 
other. 

"We  need  not,  therefore,  consider 
anything  except  the  instructions 
given  concerning  what  are  called 
exemplary  damages,  as  the  case  was 
fit  for  them  if  they  were  allowed 
at  all. 

"  The  question  of  the  propriety  of 
their  allowance  is  not  an  open  one  in 
this  state.  The  argument  that  a 
person  is  thereby  punished  twice 
within  the  constitutional  and  com- 
mon law  rule,  is,  in  our  opinion,  en- 
tirely fallacious.  The  maxim  at 
common  law,  that  no  one  shall  be 


EXEMPLAKY    DMIXGES.  737 

injured,  and  permitting  it  to  be  done  with  that  view,  and  also 
that  the  amount  shall  operate  as  a  punishment  and  a  warning, 
is  that  to  the  extent  that  the  latter  object  influences  the  jury, 
the  verdict  ^vill  be  increased ;  and  the  cases  are  very  numerous 
in  the  books  which  show  that  very  large  additions  must  have 
been  made  for  punitory  effect  to  the  amount  which  would 
otherwise  have  been  found.  'Nor  is  this  result  sm'prising  to 
those  who  have  frequently  participated  in  or  witnessed  such 
trials,  and  observed  the  effect  of  the  indignant  denunciations  of 
counsel,  seconded  by  the  apparently  dispassionate  instructions 
of  the  court,  submitting  the  very  same  considerations  to  the 
jury  as  warranting  them,  in  their  discretion,  for  the  good  of  the 
public,  in  awarding  a  larger  sum. 

In  a  Xew  York  case,^  the  court  say:  "  In  vindictive  actions — 
and  this  [for  assault  and  batter}'-]  is  agreed  to  come  within  that 
class  —  jurors  are  always  authorized  to  give  exemplary  damages, 
where  the  injury  is  attended  with  circumstances  of  aggravation; 
and  the  rule  is  laid  down  without  qualification,  that  we  are  not 
to  regard  either  the  possible  or  the  actual  punishment  of  the 
defendant  by  indictment  and  conviction  at  the  suit  of  the 
people.     .     ,     .     "We  concede  that  smart  money,  allowed  by  a 

twice  vexed  for    the    same  cause,  lie  or  the  private  complainant,  we 

where  it  applied  at  all,  prevented  a  are  not  so  much  concerned  with  any 

second  prosecution  as  well  as  a  sec-  eupposable  theories  on  wliich  such 

ond  punishment;  and  if  it  applied  to  rules  may  be  based  as  with  the  rules 

civil     damages,    would    cover     the  themselves.     Civil  actions  never  lie, 

whole,  and  not  merely  what  is  as-  except  for  the  vindication  of  broken 

sumed  to  be  a  part  of  them.  But  there  laws,  any  more  tlian  criminal.    It  is 

is  no  analogy  between  the  civil  and  a  matter  of  arbitrary  regulation,  and 

criminal  remedies.    The  punishment  not  of  jmnciple,  whether  a  givea 

by  criminal  prosecution  is  to  redress  violation  of  law  shall  be  redressed 

the  grievance  of  the  public,  while  by  a  civil  or  criminal  prosecution, 

the  civil  remedy  is  for  private  re-  or  by  both;  and  where  new  crimes 

dress.    In  the  eye  of  the  law,  where  are  created  out  of  what  were  before 

both  actions  lie,  there  is  a  double  in-  civil  wrongs,  the  civil  remedy  has 

jury,  and  one  has  never,  therefore,  seldom  been  lessened  or  narrowed 

been  allowed  to  be  pleaded  in  abate-  by  reason  of  new  criminal  prosecu- 

ment  or  bar  of  the  other,  simply  be-  tion.     Wliether  we  call  the  process 

cause  they  are  contentions  between  punitory,  or  exemplary  or  remedial, 

different  parties.  we  get  no  nearer  a  conclusion,  if  the 

"But  when  we  look  at  the  rules  law  has  given  the  rule  of  procedure." 

which  have  been  provided  for  en-  Scripps  v.  Reilly,  08  Jlich.  10. 

forcing  the  redress  of  either  the  pub-  1  Cook  v.  ElKu,  6  Hill,  4GG. 
Vol.  1—47 


738  EXEMPLAEY    DAlIxiGES. 

jury,  and  a  fine  imposed  at  the  suit  of  the  people,  depend  on 
the  came  principle.  Both  are  penal,  and  intended  to  deter 
others  from  the  commission  of  the  like  crime.  The  former, 
however,  becomes  incidentalhj  compensatory  for  damages,  ami 
at  the  same  time  answers  the  purposes  of  punishment.  The 
recovery  of  such  damages  ought  not  to  be  made  dependent  on 
what  has  been  done  by  way  of  criminal  prosecution,  any  more 
than  on  what  may  be  done.  J^or  are  we  prepared  to  concede 
that  either  a  fine,  an  imprisonment,  or  both,  should  be  received 
in  evidence  to  mitigate  the  damages.  True,  if  excluded,  a 
double  punishment  may  sometimes  ensue ;  but  the  preventive 
lies  with  the  criminal  rather  than  the  civil  courts,"  It  obviously 
should  be  assumed  that  such  double  punishment  occurs  in  every 
instance  where  the  same  act  is  the  subject  of  a  civil  and  a 
criminal  suit,  and  in  each  the  malicious  act  is  submitted  to  the 
jury;  with  the  usual  instructions,  in  the  former,  in  respect  to 
exemplary  damages  for  punishment. 

If  the  idea  of  punishment  is  excluded,  and  the  aggravations 
are  permitted  to  be  considered  only  as  elements  of  tlie  injury  to 
the  injured  party,  the  civil  action  is  merely  a  means  of  private 
redress,  for  the  particular  injury  such  party  suffers  from  an  act 
which,  in  a  general  way,  afi'ects  the  whole  comnmnity.  He  is 
entitled  to  that  redress  without  prejudice  from  the  existence; 
of  a  liability  to  respond  to  the  public. 

Diversity  of  opinion  where  the  wrong  is  prnsrisiiABLE  as  a 
CRIMINAL  OFFENSE. —  The  courts  of  soiiie  of  the  states  only  allow 
exemplary  damages,  including  the  punitory  element,  for  such 
tortious  acts,  accompanied  with  malice,  or  wanton  misconduct. 
as  are  not  criminal  offenses.^  But  more  generally,  that  liability 
to  punishment  in  a  prosecution  for  the  same  act  as  an  offense 
against  the  state,  is  held  not  to  affect  tlie  civil  remedy ;  the  jurv 
have,  notwithstanding,  the  same  discretion  to  allow  damages, 
beyond  compensation,  for  punishment.^ 

iFreesev,  Tripp,  70111.496;  Meidel  H,  342;  Bixby  v,  Dunlop,  56  N.  H. 

v.Anthis,  71  111.  241;  Lucas  v.Flinn,  456;  Cherry  v.  McCall,  23  Ga.  193: 

35  Iowa,  9;  Hendrickson  v.  Kings-  Butler  v,  Mercer,  14  Ind.  479. 
bury,  21  Iowa,  379;   Stowe  v.  Hey-         2  Cook  v.  Ellis,  6  Hill,  466;  Corwiji 

wood,  7  Allen,  118;  Storall  v.  Smith,  v.  Walter,  18  Mo.  71;   Jefferson  v. 

4  B.  Mon.  378;  Fay  v.  Parker,  53  N.  Adams,    4    Harr.    321;    Wilson    v. 


EXEMPLAKY    DAMAGES. 


T39 


The  reasoning  upon  which  this  double  liability  to  punishment 
is  maintained  is  not  very  satisfactory.  It  is  not  a  cogent  answer 
to  the  objection,  that  the  additional  damages  imposed  for  pun- 
ishment in  the  civil  action  go  to  the  injured  paity.  He  is  not 
entitled  to  it  if  he  is  otherwise  compensated ;  nor  does  the  fact 
tliat  this  mulct  goes  to  him,  instead  of  the  state,  render  its 
imposition  any  less  a  punishment,  wliich  is  repeated  and  dupli- 
cated when,  upon  the  same  principle  and  for  the  same  public 
purpose,  he  is  fined  again  in  a  prosecution  in  the  name  of  the 
state.^ 


Middleton,  2  Cal.  54;  Edwards  v,  Lea- 
vitt,  46  Vt.  126;  Hoadley  v.  Watson, 
45  id.  289;  Phillips  v.  Kelly,  29  Ala. 
628;  Roberts  v.  Mason,  10  Ohio  St. 
277;  Garland  v.  Wholeham,  26  Iowa, 
185;  ^^Hieatley  t.  Thorn,  23  Miss.  62; 
Fry  V.  Bennett,  4  Duer,  247;  Pike  v. 
DiiUng,  48  Me.  539;  Goddard  v. 
Grand  Trunk  R'y  Co.  57  Me.  202; 
Johnson  v.  Smith,  64  Me.  553;  Wolff 
V.  Cohen,  8  Rich.  144. 

ijin  Ward  v.  Ward,  41  Iowa,  687, 
Beck,  J.,  said:  "  It  is  the  settled  rule 
in  this  state,  that,  in  cases  of  this 
kind,  where  the  proper  facts  are 
shown,  and  it  appears  that  the  act 
complained  of  is  punishable  under 
the  criminal  statutes,  punitive  and 
exemplary  damages  may  be  allowed. 
Guengerich  v.  Smith,  35  Iowa,  587; 
Garland  v.  Wholeham,  26  id.  185; 
Hendrickson  v.  Kingsbury,  21  id. 
379.  Among  the  objects  attained 
by  the  allowance  of  exemplary  dam- 
ages are  the  punishment  of  the 
wrongdoer,  and  the  example  where- 
by others  are  deterred  from  the 
commission  of  like  wTong  —  and  it 
is  often  said  such  damages  are  al- 
lowed for  these  purposes.  Sedgw. 
on  Measure  of  Damages,  p.  587,  note; 
1  HiUiard  on  Torts,  p.  251,  note  n; 
Anthony  v.  Gilbert,  4  Blackf.  MS; 
Taylor  v.  Church,  8  N.  Y.  652,  460; 
Bailey  v.  Dean,  5  Barb.  297,  303; 
Roberts  v.  Mason,  10  Ohio  St.  277, 


280.  Indeed,  it  appears  that  one  of 
the  objects  of  punishment  in  all 
cases  is  to  px'event  the  repetition  of 
the  crime  by  the  culprit  and  others. 
The  example  of  punishment,  it  is 
presumed,  will  deter  others  from 
the  commission  of  others  in  the 
future. 

"  Counsel  for  defendant  insists  that 
while,  in  proper  cases,  exemplary 
damages  may  be  allowed  for  the 
purpose  of  punishing  the  defendant, 
they  ought  not  to  be  carried  to  the 
extent  that  they  may  serve  as  an 
example  to  others;  that  is,  the  de- 
fendant ought  not  to  suffer  for  the 
purpose  ©f  public  good.  It  is  true 
that  vindictive  damages  are  never 
allowed  alone  for  the  purpose  of 
public  good,  through  the  example 
given  in  their  assessment.  The  effect 
upon  the  public  is  but  an  incident, 
just  as  the  effect  of  punishment  in 
criminal  cases  incidentally  operates 
to  deter  others  from  the  commission 
of  crime." 

In  Brown  v.  Swineford,  44  Wisi 
285,  Rj^an,  C.  J.,  said:  "A  very  able 
and  solemn  appeal  was  made  to  the 
court  to  exclude  the  rule  of  ex- 
emplary damages  in  actions  of  tort, 
when  the  tort  is  punishable  as  a 
crime.  Tlie  position  was  founded 
upon  the  clause  in  section  8,  article 
II  of  the  constitution,  that  no  person, 
for  the  same  offense,  shall  be  twica 


r4o 


EXEMPLARY    DAMAGES. 


"When  punitory  damages  are  allowed,  the  law  uses  the  suit  of 
a  private  party  as  an  instrument  of  public  protection,  not  for 
the  sake  of  the  suitor,  but  for  that  of  the  public.  It  is  not  the 
form  of  the  action  that  gives  the  right  to  the  jury  to  give  such 


put  in  jeopardy  of  punishment.  It 
was  argued,  with  very  great  force, 
that  punitory  damages  given  in  the 
right  of  the  public,  in  addition  to 
full  compensation  to  the  sufferer  by 
an  act  which  is  at  once  a  tort  and  a 
crime,  as  in  this  case,  and  in  Mc- 
Williams  v.  Bragg,  3  Wis.  424,  and 
Birchard  v.  Booth,  4  id.  67,  subjects 
the  tortfeasor  to  punishment  twice 
for  the  same  offense.  And  it  might 
have  been  added,  that  while  the 
statute  limits  the  pecuniary  fine 
upon  criminal  prosecution  for  such 
an  act,  there  is  but  vague  limit  to 
the  punitory  damages  which  a  jury 
may  find  in  a  civil  action.  It  cer- 
tainly appears  to  be  an  mcongruity 
that  one  may  be  punished  by  the 
public  for  the  crime,  upon  criminal 
prosecution,  by  fine  limited  by 
{Statute,  and  again  punished  in  favor 
of  the  sufferer,  but  m  right  of  the 
public,  for  the  same  act,  by  punitory 
damages,  with  little  limit  but  the 
discretion  of  a  jury.  This  is  but 
another  illustration  of  what  appears 
to  be  the  incongruity  of  the  entire 
rule  of  exemplary  damages. 

"On  this  subject,  the  writer  ad- 
heres to  what  he  said  in  Bass  v. 
Railway  Co.  43  Wis.  672,  confirmed 
by  comments  which  he  has  seen 
about  it  in  legal  periodicals.  And  he 
believes  that  his  views  of  punitory 
damages,  as  an  original  question, 
are  sanctioned  by  every  present 
member  of  the  court. 

"  The  particular  view  now  insisted 
on  was  overlooked  in  Mc Williams  v. 
Bragg,  Birchard  v.  Booth,  and  all 
the  cases  in  this  court  in  which  the 
action  was  against  the  actual  tort- 


feasor, subject  to  criminal  convic- 
tion for  the  act.  In  Railroad  Co.  v. 
Finney,  10  Wis.  388;  Bass  v.  Rail- 
way Co.  36  id.  450;  S.  C.  43  id.  654; 
Craker  v.  Railway  Co.  36  id.  657, 
and  other  cases  where  the  action 
was  against  the  master  for  the  tort 
of  the  servant,  it  could  not  well 
arise.  So  far,  therefore,  it  is  a  ques- 
tion of  first  impression  here;  and 
the  court  congratulates  itself  that  it 
arises  first  in  a  case  thorouglily  dis- 
cussed by  able  counsel  on  both  sides. 
"It  would  have  been  no  subject 
of  regret  to  the  court,  if  the  obliga- 
tion of  the  constitution  called  upon 
it  to  abridge  the  application  of  the 
rule.  But  the  court  is  unable  to 
hold  that  the  constitutional  pro- 
vision has  any  controlling  bearing 
on  the  question.  The  constitution 
only  re-enacts  what  was  the  gen- 
eral, if  not  literally  universal,  rule 
at  common  law.  See  authorities 
collected  in  1  Bish.  Crim.  Law, 
§§  980-987.  The  word  jeopardy  is 
therefore  used  in  the  constitution  in 
its  defined  technical  sense  at  the 
common  law.  And  in  this  use  it  is 
applied  only  to  strictly  criminal  pros- 
ecutions by  indictment,  informa- 
tion, or  otherwise.  Commonwealth 
V.  Cook,  6  Ser.  &  R.  577;  State  v. 
McKee,  1  Bailey,  651;  People  v. 
Goodwin,  18  John.  187;  U.  S.  v. 
Gibert,  3  Sumn.  19;  U.  S.  v.  Has- 
kell, 4  Wash.  403.  See,  also,  State 
V.  Crane,  4  Wis.  400.  The  cases 
generally  hold  that  the  rule  in  crim- 
inal cases,  that  one  shall  not  twice 
be  put  in  jeopardy,  implies  no  more 
than  the  bar  of  a  judgment  to  an 
action  for  the  same  cause.     But  no 


EXEMPLAKY   DAMAGES. 


74:1 


damages,  but  the  moral  culpability  of  the  defendant.^  After 
there  has  been  one  trial  in  which  the  moral  culpability  of  the 
defendant  has  been  tried  with  a  \dew  to  punishment  in  the  in- 
terest of  the  public,  any  other  trial  for  the  same  purpose, 
whatever  may  be  the  form  of  the  proceeding,  is  in  substance 
and  effect,  putting  the  accused  again  in  jeopardy  of  punish- 
ment for  the  same  offense,  and  vexins:  him  ao-ain  for  the  same 


case  is  known  -where  a  conviction 
upon  an  indictment  has  been  laeld  a 
bar  to  a  civil  action  for  damages 
growing  out  of  the  same  act;  a  for- 
tiori, none  in  which  a  recovery  in  a 
civil  action  has  been  held  a  bar  to 
an  indictment  for  the  same  act. 
And  the  whole  purview  of  section  8 
plainly  shows  that  the  putting  in 
jeopardy  prohibited  is  confined  to 
criminal  i)rosecutions.  Indeed,  this 
is  manifest  in  the  clause  itself, 
which  is  coniined  to  the  same  of- 
fense, used  in  the  same  sense  as 
criminal  offense,  in  the  fii'st  clause 
of  the  section.  Of  com-se  the  same 
act  may  be  an  offense  (in  the  sense 
of  crime)  against  the  state,  and  an 
offense  (in  the  sense  of  tort)  against  a 
private  pei'son.  It  is  manifest  that 
a  judgment  for  one  is  not  a  bar  to 
the  other.  And  it  might  be  difficult, 
on  principle,  to  hold  a  criminal  con- 
viction as  a  bar  to  the  recovery  of 
punitoiy  damages  in  a  civil  action, 
and  not  a  bar  to  the  recoveiy  of 
compensatoiy  damages;  not  a  bar 
to  any  civil  action.  See  Jacks  v. 
Bell,  3  C.  &  P.  316. 

"  Tlie  radical  difficulty  in  the 
position  of  counsel  appears  to  be 
that  judgment  for  the  criminal  of- 
fense is  for  the  offense  against  the 
public;  judgment  for  the  tort  is  for 
the  offense  against  the  private  suf- 
ferer; that  though  punitorj^  dam- 
ages go  in  the  right  of  the  public, 
for  example,  they  do  not  go  by  way 
of  public  punishment,  but  by  way 


of  private  damages;  fortlie  act  as  a 
tort,  and  not  as  a  crime;  to  the  pri- 
vate sufferer,  and  not  to  the  state. 
Tliough  they  are  allowed  beyond 
compensation  of  the  private  suf- 
ferer, they  still  go  to  him  for  him- 
self, as  damages  allowed  to  him  by 
law  in  addition  to  his  actual  dam- 
ages; like  the  double  and  treble 
damages  sometimes  allowed  by 
statute.  Considered  as  strictly  puni- 
tory, the  damages  are  for  the  pun- 
ishment of  the  private  tort,  not  of 
the  public  crime.  It  is  unfortunate 
that  damages  should  ever  have  been 
sviffered  to  go  beyond  actual  com- 
pensation, under  a  liberal  rule  like 
that  given  in  Craker  v.  Railway  Co. 
36  Wis.  6oT.  But  the  rule  so  given 
and  so  generally  establislied  is  a  sin 
against  sound  judicial  principle,  not 
against  the  constitution.  ,  .  .  The 
argument  and  consideration  of  this 
have  gone  to  confirm  the  present 
members  of  this  court  in  their  dis- 
approbation of  the  rule  of  exemplary 
damages  which  they  have  inherited. 
But  they  fear  to  complicate  the  dif- 
ficulties and  incongruities  of  the 
rule  by  the  exception  urged;  and  do 
not  feel  at  liberty  to  change  or  mod- 
ify the  rule  at  so  late  a  day,  against 
the  general  current  of  authority 
elsewhere."  SeeMalonev.  Murphy. 
2  Kan.  250;  Whitney  v.  Hitchcock. 
4  Denio,  461;  Wlieeler  v.  Randall. 
48  111.  182. 

1  Hamilton  v.    Third  Ave.  R.   R. 
Co.  53  N.  Y.  25. 


742  EXEMPLARY    DAMAGES. 

cause.  N'or  is  the  objection  removed,  tliougli  the  fii'st  verdict 
and  the  judgment  thereon  be  provable  on  the  second  trial  in 
mitigation,  though  this  would,  to  the  extent  of  the  mitigation, 
lessen  the  injury  resulting  from  double  punishment.  And  in 
some  jurisdictions  it  is  provable  in  mitigation.^ 

These  damages  for  punitory  effect,  where  allowed,  cannot  be 
claimed  as  a  matter  of  riglit.^  Whether  they  shall  be  allowed, 
and  their  amount,  are  left  to  the  discretion  of  the  jury,^  but 
subject  to  the  power  of  the  court  to  set  aside  the  verdict  if  it  is 
so  excessive  that  the  court  may  infer  that  the  jury  have  been 
influenced  by  passion  or  prejudice.^ 

What  mat  be  pkoved  and  considered  to  enhance  or  miti- 
gate EXEMPLAEY  DAMAGES. —  The  expeuscs  of  the  particular 
action  to  redress  a  wrong,  except  as  they  are  allowed  to  be 
taxed  as  costs,  are  not  allowed  for  the  purpose  of  compensa- 
tion. But,  in  some  states,  where  the  wi'ong  is  accompanied  by 
such  aggravations,  or  induced  by  such  bad  motives  as  to  justify 
exemplary  damages,  a  less  strict  rule  governs  in  determining 
the  extent  of  compensation ;  in  other  words,  damages  are  given 
with  a  more  liberal  hand,^  and  may  be  made  to  embrace  losses 
and  injuries  which  would  otherwise  be  excluded ;  and  among 
these,  the  counsel  fees  and  other  expenses,  not  included  in 
the  costs  taxed.®    But  these  are  perhaps  more  frequently  re- 

1  Taylor  V.  Carpenter,  3  Woodb.  &  *  Rogers  v.  Henry,  32  Wis.  327; 
M.  1,  22;  State  v.  Autery,  1  Stew.  Belknap  v.  Railroad,  49  N.  H.  358; 
399;  Johnston  v.  Crawford,  Phelps'  McCarthy  v.  Niskern,  22  Minn.  90; 
L.  (N.  C.)  342;  Porter  V.  Seller,  23  Pa.  McConnell  v.  Hampton,  12  John. 
St.    424;    Smith  wick     v.    Ward,    7  234. 

Jones'  L.  (N.  C.)  64.  5  Emblen  v.  Myers,  6  H.  &  N.  54. 

2  Snow  V.  Carpenter,  49  Vt.  426;  « Welch  v.  Durand,  36  Conn.  182. 
Boardman  v.  Goldsmith,  48  Vt.  403;  In  St.  Peter's  Church  v.  Beach,  26 
Johnson  V.  Smith,  64  Me.  553.  Conn.  364,  Ellsworth,  J.,  said:    "It 

3  Id. ;  Graham  v.  Pacific  R.  R.  Co.  is  part  of  the  case,  that  the  actual 
66  Mo.  536;  New  Orleans,  etc.  R.  R.  damage  suffered  by  the  plaintiffs  in 
Co.  V.  Burke,  53  Miss.  200;  Southern  the  destruction  of  their  property 
R.  R.  Co.  v.  Kendrick,  40  Miss.  374;  does  not  exceed  $10,  and  the  def end- 
Hawk  V.  Ridgway,  33  111.  473;  ant's  conduct  was  not  wanton  or 
Johnson  v.  Smith,  64  Me. '553.  See  malicious.  Of  course,  the  plaintiffs 
Hooker  v.  Newton,  24  Wis.  292,  and  were  entitled,  as  the  court  stated,  to 
Coryell  v.  Colbaugh,  Coxe  (N.  J.  L.),  recover  their  actual  damage;  but  the 
77.  court    further  instructed  the  jury 


EXEMl'LAKY    D,ViIAGES. 


r43 


jected.^    As  to  the  admissibility  of  evidence  of  tlie  social  stand- 
ing of  the  parties,  and  wealth  of  the  defendant,  there  are  diverse 


that  if  the  plaintiffs  had  been  com- 
pelled to  come  into  court  to  vindi- 
cate their  rights,  the  jurj'  might 
take  into  consideration  the  expenses 
attending  such  vindication  beyond 
the  taxable  costs,  as  actual  damage. 
If  this  be  a  just  intei-pretation  of 
the  rule  of  actual  damages,  such 
damages  will  become  just  and  legal 
in  every  case,  whether  of  tort  or 
contract;  for  the  plaintiff  may  al- 
ways say  that  he  is  compelled  to 
come  into  court  to  vindicate  his 
rights.  But  not  to  criticise  the 
form  or  language  of  the  charge,  we 
think  there  is  in  it  a  radical  error, 
viz. :  that  in  cases  where  a  penal  sum 
or  smart  money  is  not  to  be  allowed, 
the  expenses  of  the  litigation  may 
be  allowed  as  damages;  for  the 
judge  stated  that  none  but  actual 
damages  were  to  be  assessed,  and 
proceeded  to  say  that  the  expenses 
might  be  allowed;  and,  although  the 
actual  loss  of  injuiy  did  not  exceed 
^10,  the  jury  rendered  a  verdict  for 
.$197.91.  Now,  the  exi)enses  of  liti- 
gation are  never  damages  sued  for 
in  any  case,  when  the  action  is 
brought  for  the  ^vl•ong  itself;  not 
even  if  the  tort  be  wanton  or  mali- 
cious. They  are  not  'the  natural 
and  proximate  consequence  of  the 
^vrongful  act,'  which  is  the  univer- 
sal rule,  but  are  remote,  future  and 
contingent.  They  may  follow  the 
wrong,  and  are  very  likely  to,  but 
not  of  course,  or  necessarily.  Be- 
sides, damages  sued  for  must  be  such 
as  exist,  and  can  be,  and  are,  in 
some  form,  satisfactory  to  the  law, 
stated  in  the  declaration,  and  made 
matter  of  jn-oof ;  but  those  expenses 
accrue  subsequently  to  the  bringing 
of  the  suit,  and  cannot  be  stated 
in  the  declaration,  nor  can  they 
become  matter  of  proof. 


"  In  actions  of  tort  founded  on  the 
misconduct  or  culpable  neglect  of 
the  defendant,  it  is  usual  and  en- 
tirely proper  for  the  judge  to  say  to 
the  jury  that  they  are  not  necessa- 
rily confined  in  assessing  damages  to 
the  actual  loss  of  property  to  the 
plaintiff,  but  may  allow  smart 
money,  measured  by  the  circum- 
stances of  aggravation;  and  may, 
from  their  general  knowledge  of  the 
course  of  the  courts,  if  the  case 
wai-rants  it,  in  their  judgment,  take 
into  account  the  expenses  of  the 
trial  beyond  the  taxable  costs." 

In  the  case  of  Welch  v.  Durand, 
supra,  and  several  earlier  cases,  the 
court  sustain  instructions  in  accord- 
ance with  the  above  views,  as  dam- 
ages ajjpropriate  only  to  actions  in 
which  smart  money  may  be  given. 
Linsley  v.  Bushnell,  15  Conn.  225; 
Beecher  v.  Derby  Bridge  Co.  24 
Conn.  132;  Ives  v.  Carter,  24  Conn. 
392. 

In  Kansas  the  same  doctrine  is 
held.  Titus  v.  Corkins,  2\  Kan, 
722.  And  in  Ohio,  that  in  such 
cases  these  expenses  may  be  taken 
into  account  in  estimating  compen- 
satory damages.  Roberts  v.  Mason, 
10  Ohio  St.  277.  See  MarshaU  v. 
Betner,  17  Ala.  832;  Bracken  v. 
NeiU,  15  Tex.  109;  Flack  v.  Neill,  22 
Tex.  253;  New  Orleans,  etc.  R.  R. 
Co.  V.  AUbritton,  38  Miss.  242; 
Thompson  v,  Pouning,  15  Nevada, 
195. 

1  Day  V.  Woodworth,  13  How.  U. 
S.  363;  Earl  v.  Tupper,  45  Vt.  275; 
Barnard  v.  Poor,  21  Pick.  378;  Fair- 
banks V.  Witter,  18  Wis.  287;  War- 
ren V.  Cole,  15  Mich.  265;  Kelly  v. 
Rogers,  21  Minn.  146;  Howell  v. 
Scoggins,  48  Cal.  355;  Falk  v.  Wa- 
terman, 49  Cal.  224. 


T44  EXEMPLAJIT    DAIVIAGES. 

rulings,  not  corresponding  to  the  conflict  in  respect  to  vindictive 
damages.  In  an  action  for  false  imprisonment,  in  an  early  ISTe^v 
York  case,*  Thompson,  C.  J.,  said :  "  Although  the  defendant 
is  a  man  of  very  large  fortune,  the  plaintiff's  injury  is  not 
thereby  enhanced."  In  a  late  case  in  ISTew  Hampshire,  by  a 
passenger  against  a  railroad  company  for  wrongful  expulsion 
from  its  cars,  Sargent,  J.,  said :  "  We  must  remember  that  in 
considering  this  question  of  actual  damage,  of  compensation 
for  actual  injury,  it  is  immaterial  what  may  be  the  character, 
standing,  condition  or  means  of  the  defendant.  The  rule  of 
damages  is  compensation  for  the  plaintiff's  injury ;  that  is  all ; 
and  that  would  be  the  same,  whether  the  defendant  be  a  rail- 
road or  a  private  individual;  whether  the  private  individual 
were  rich  or  poor.  The  question  is  not  how  much  the  defend- 
ant is  able  to  pay,  but  what  is  a  fair  compensation  to  this 
plaintiff  for  all  the  injury  he  has  suffered?  That  injury  is  the 
same  whether  the  defendant  is  the  richest  raikoad  or  the  poor- 
est individual  in  the  community.     ... 

"  In  regard  to  the  question  of  exemplary  damages,  .  .  . 
it  would  be  very  different  from  the  one  we  have  been  consider- 
ing. In  that  case,  the  jury  undertake,  first,  to  give  the  plaintiff 
damages,  as  a  compensation  for  his  injury;  and,  second,  they 
undertake  also  to  punish  the  offender  for  the  wrong  he  has 
done ;  .and  when  that  element  is  introduced,  it  becomes  proper 
to  inquire  into  the  condition  and  circumstances  of  the  defend- 
ant ;  because  what  would  be  a  severe  punishment  for  a  poor 
man,  by  way  of  fine  or  exemplary  damages,  might  not  be  felt 
by  one  that  was  rich.  What  would  be  sufficient  as  damages,  by 
way  of  example  and  punishment,  for  a  day  laborer,  would  be 
nothing  by  way  either  of  example  or  as  a  punishment  for  this 
defendant,  as  a  corporation.  Wot  only  the  ability  of  the  de- 
fendant, but  the  motives  and  intentions  accompanying  the  act, 
the  malice  or  oppression  exhibited,  the  wrong  and  injustice  of 
the  act,  may  be  inquired  into,  with  a  view  to  fix  the  proper 
measure  of  punitory  or  exemplary  damages."  ^ 

In  other  cases  it  has  been  held,  and  the  better  doctrine  from 
its  intrinsic  reasonableness  is,  that  so  far  as  the  cause  of  action 

'  McConuell  v,  Hampton,  13  Jolm.  373,  374;  Smith  v.  Wunderlich,  70 
836.  lU.  437. 

2  Belknap   v.  Railroad,  49  N.    H. 


EXEMPLARY   DAMAGES.  745 

rests  upon  an  injury  to  character,  or  an  insult  to  the  person, 
compensatory  damages  may  be  increased  by  proof  of  the  wealth 
of  the  defendant.  This  is  upon  the  ground  that  wealth  is  an 
element  which  goes  to  make  up  his  rank  and  intluence  in  society, 
and  thereby  renders  the  injury  or  insult  resulting  from  his 
wrongful  acts  the  greater,^  But  in  such  cases,  as  it  is  rather  the 
reputation  for,  than  the  possession  of  wealth,  which  is  the 
cause  of  this  increased  rank,  the  testimony  should  correspond, 
and  only  the  general  question  as  to  his  circumstances  can  be 
asked,  and  not  the  detail.^ 

But  when  exemplary  damages  are  claimed,  a  different  ques- 
tion is  presented.  The  defendant's  pecuniary  abihty  is  then  a 
matter  for  the  consideration  of  the  jury,  on  the  ground  that  a 
given  sum  would  be  a  much  grea.ter  punishment  to  a  man  of 
small  means  than  to  one  of  larger.^  For  this  purpose  actual 
wealth  only  can  be  material.*  In  cases  where  it  is  competent 
for  the  plaintiff  to  prove  the  wealth  of  the  defendant  to  increase 
the  damages,  it  is  equally  competent  for  the  defendant  to  show 
a  want  of  it,  to  dhninish  them.  And  he  cannot  be  deprived 
of  this  right  by  the  omission  of  the  plaintiff  to  offer  any  proof 
on  that  point,  or  to  make  any  claim  of  damages  on  that 
ground."  In  actions  for  breach  of  promise  to  marry,  proof  of 
the  defendant's  wealth  is  allowed  as  material  in  the  estimate  of 
compensation.^  In  Iowa,  such  proof,  even  with  a  ^icw  to  puni- 
tory damages,  is  not  allowed.^ 

In  actions  for  torts,  the  damages  for  which  cannot  be 
measured  by  a  legal  standard,  all  the  facts  constituting  and  ac- 
companying the  wrong  should  be  proved ;  and  though  there  be 
a  legal  standard  for  the  principal  wrong,  if  aggravations  exist, 
they  may  be  proved,  to  enhance  damages ;  and  every  case  of 

1  Johnson  V.  Smith,   64  Me.    553;  ham,  42Wis.  493:  Birchard  v.  Booth, 

Humphries  v.  Parker,  53  Me.  507-8;  4  Wis.  67;  Barnes  v.  Martin,  15  Wis. 

2  Greenlf.  Ev.  §  269.  240;    Wliitfieia    v.    Westbrook,    40 

2Stanwood  v,  Whitmore,  63  Me.  Miss.  311. 

209;  Johnson  V,  Smith,  supra.  *W. 

3  Johnson    v.   Smith,   supra;   Bel-  5  Johnson  v.  Smith,  supra. 

knap  V.  RaQroad,  supra;  McBride  v.  *>  See  post,  Vol.  3. 

McLaughlin,  5  Watts,  375;  Jones  v.  "Hunt  v.  The  C.   &  N.  W,  R.  E. 

Jones,  71  111.  562;  McCarthy  v,  Nis-  Co.   26  Iowa,   363;    Guengerech    v. 

kern,  22  Minn.   90;  Winn  v.  Peck-  Smith,  34  Iowa,  348. 


EXEMPLAEY    DAMAGES. 


personal  tort  must  necessarily  go  to  the  jury  on  its  special 
facts ;  these  embrace  the  res  gestcB,  and  the  age,  sex  and  status 
of  the  parties ;  this,  whether  the  case  be  one  for  compensation 
only,  or  also  for  exemplary  damages,  where  they  are  allowed.^ 


iHuckle  V.  Money,  2  Wils.  205; 
Oraker  v.  The  Chicago,  etc.  R.  R. 
Co.  36  Wis.  657;  Lyon  v.  Hancock, 
35  Cal.  372;  Jones  v.  Jones,  71  111. 
562;  White  v.  Martland,  71  111.  250; 
Fowler  v.  Chichester,  26  Ohio  St.  9; 
Magee  v.  HoUaud,  27  N.  J.  L.  86; 
Bell  V.  Morrison,  27  Miss.  68;  Scripps 
V  Reilly,  38  Mich.  10;  Andrews  v. 
Askey,  8  C.  &  P.  7;  Hall  v.  Hollen- 
der,  4  B.  &  C.  660.  In  Craker  v. 
The  Chicago,  etc.  R.  R.  Co.  supra, 
Ryan,  C.  J.,  said:  "In  Wilson  v. 
Young.  31  Wis.  574,  Lyon,  J.,  inad- 
vertently fell  into  some  subtleties 
found  in  Mr.  Sedgwick's  excellent 
work,  which  appear  to  us  all  now  to 
confuse  compensatory  and  exem- 
plary damages.  The  distinction  was 
not  in  that  case,  and  the  passage  in 
Sedgwick  was  cited  and  approved, 
as  such  high  authorities  often  are, 
without  sufficient  consideration. 
We  all  now  concur  in  disapproving 
the  distinction.*  In  giving  the  ele- 
ments of  damages,  Mr.  Sedgwick 
distinguishes  between  '  the  mental 
suffering  produced  by  the  act  or 
omission  in  question:  vexation; 
anxiety;'  which  he  holds  to  be 
ground  for  compensatoi-y  damages; 


and  '  the  sense  of  wrong  or  insult, 
in  the  sufferer's  breast,  from  aii  act 
dictated  by  a  spirit  of  wilful  injus- 
tice, or  by  a  deliberate  intention  to 
vex,  degrade  or  insult; '  wliich  he 
holds  to  be  ground  for  exemplary 
damages  only.  Sedgwick's  Meas. 
Dam.  35.  Mr.  Sedgwick  himself 
says  that  the  rule  in  favor  of  exem- 
plary damages  '  blends  together  the 
interests  of  society  and  the  ag- 
grieved individual,  and  gives  dam- 
ages not  only  to  recomjjense  the 
sufferer,  but  to  jjunish  the  offender ' 
(id.  38);  and  following  him,  this 
court  held  in  the  leading  case  of 
Mc Williams  v.  Bragg,  4  Wis.  424, 
and  has  often  since  reaffirmed,  that 
exemplar}^  damages  are  '  in  addition 
to  actual  damages.' 

"In  actions  of  tort,  as  a  rule, 
when  the  ijlaintifi's  right  to  recover 
is  established,  he  is  entitled  to 
full  compensatory  damages.  When 
proper  ground  is  established  for  it, 
he  is  also  entitled  to  exemplary 
damages,  in  addition.  The  former 
are  for  the  compensation  of  the 
plaintiff;  the  latter  for  the  punish- 
ment of  the  defendant,  and  for  ex- 
ample to  others.     This  is  Sedgwick's 


•In  Wilson  V.Young,  It  was  held  that  In  an  action  for  assault  and  batttry,  compensatoru  (as  dis- 
tinguished from  pwHitioe)  damages  are  of  two  kinds:  (1)  Those  which  maybe  recovered  for  the 
actual  personal  or  pecuniary  injury  and  oss  ;  the  elements  of  which  are,  loss  of  time,  bodily  suf- 
fering. Impaired  physical  or  mental  powers,  mutilation  and  disfigiiremeut,  expenses  of  suigical 
and  other  attendance,  and  the  Uke.  (2)  Tnose  which  may  be  recovered  for  injuries  to  the  feelings 
arising  from  the  insult  or  indignity,  the  public  exposure  and  contumely',  and  the  like.  The  com- 
pensation of  the  lirst  kind  are  to  be  determined  without  refere.ice  to  the  question  whetiier  the 
defendant  was  influenced  by  malicious  motives  in  the  act  complained  of;  and,  on  the  other  hand, 
evidence  of  threatening  or  aggravating  language,  or  malicious  conduct  on  the  plalntifTs  part  (not 
constituting  a  legil  justification  of  the  defendant's  act),  cannot  be  considered  in  mitigation  of 
such  damages.  That  compensatory  damages  of  the  second  kind  depend  entirely  upon  the  malice 
of  the  defendant ;  and  as  evid'uce  of  such  malice  maybe  given  to  increase  that  kind  of  damages, 
80  evidence  of  threatening  or  malicious  words  or  acts  on  plalntifTs  part,  just  previous  to  the 
assault,  though  not  constituting  a  legal  justification,  should  be  admitted  to  mitigate  or  even 
defeat  such  danipges. 


EXEMPLAliY   DAMAGES. 


Y47 


To  rebut  malice,  the  defendant  may  show  any  pertinent 
facts ;  the  advice  of  counsel  as  to  acts  usually  thus  influenced 
is  admissible  at  least  to  prevent  exemplary  damages ;  ^  but  the 
adviser  must  be  one  entitled  to  act  in  that  capacity ;  -  by  being 


blending  together  of  the  interests  of 
society  and  the  interest  of  the 
plaintiflf.  And  it  is  plain  that  there 
cannot  well  be  common  ground  for 
the  two.  The  injury  to  the  plaint- 
iff is  the  same,  and  for  that  he  is 
entitled  to  full  compensation,  malice 
or  no  malice.  If  malice  be  estab- 
lished, then  the  interest  of  society 
comes  in,  to  i>unish  the  defendant 
and  deter  others  in  like  cases,  by 
adding  exemplary  to  compensatory 
damages. 

' '  We  need  add  no  authority  to 
Mr.  Sedgwick,  that  in  actions  for 
personal  tort,  mental  suffering,  vex- 
ation and  anxiety  are  subjects  of 
compensation  in  damages.  And  it 
is  difficult  to  see  how  these  are  to 
be  distinguished  from  the  sense  of 
wrong  and  insult  arising  from  in- 
justice and  intention  to  vex  and  de- 
grade. The  appearance  of  malicious 
intent  may,  indeed,  add  to  the  sense 
of  wrong;  and  equally  whether 
such  intent  be  really  thex-e  or  not. 
But  that  goes  to  mental  suffering, 
and  mental  suffering  to  comi^ensa- 
tion.  So  it  seems  to  us.  But  if 
there  be  a  subtle,  metaphysical  dis- 
tinction, which  we  cannot  see — what 
human  creature  can  penetrate  the 
mysteries  of  his  own  sensations, 
and  parcel  out  separately  his  mental 
suffering  and  his  sense  of  wrong  !  — 
so  much  for  compensatory  and  so 
much  for  vindictive  damages  ?  And 
if  one  cannnot  scrutinize  the  anat- 
omy of  his  own,  how  impossible  to 
dissect  the  mental  agonies  of  an- 
other, as  a  surgeon  does  corporal 
muscles.  If  possible,  juries  are 
surely  not  metaphysicians  to  do  it. 
And  we  must  hold  that  all  mental 
suffering  directly  cousecxuent  upon 


tort,  irrespective  of  all  such  inscru- 
table distinctions,  is  ground  for  com- 
pensatory damages  in  an  action  for 
the  tort. "  In  an  action  in  New  Jer- 
sey by  a  parent  for  the  abduction  of 
his  infant  children,  Magee  v.  Hol- 
land, 27  N.  J.  L.  8a,  Elmer,  J.,  said: 
"  The  right  of  the  jury  to  consider 
all  the  circumstances  of  the  case, 
and  to  award  exemplary  damages, 
necessarily  drew  witii  it  the  right  to 
consider  the  injury  done  to  the  feel- 
ings of  the  father,  as  well  as  aU 
other  circumstances  of  aggravation. 
.  .  .  It  was  not  insisted,  on  be- 
half of  the  defendant,  tliat  exem- 
plary damages  cannot  be  awarded  in 
any  case,  that  principle  being  too 
well  established  in  this  state  to  ad- 
mit of  question.  The  argument 
urged  was,  tliat  to  justify  such 
damages,  there  must  be  fraud,  wan- 
tonness, malice,  or  oppression,  and 
that  all  tliese  ingredients  were  want- 
ing in  this  case.  I  am  not  willing 
to  concede,  that,  in  an  action  of  this 
kind,  the  jury  might  not  properly 
look  at  all  the  circumstances,  and 
apportion  the  damages  to  the  actual 
wrong  done  to  the  plaiutifT's  feelings 
and  paternal  affection  and  rights, 
without  any  positive  proof  of  malice 
or  oppression." 

1  Cochrane  v.  Tutlle,  75  111.  361; 
Stone  V.  Swift,  4  Pick.  389;  Bonsted 
V.  Bonsted,  30  Wis.  511.  See  Jasper 
V.  ParneU,  67  lU.  358;  Dyer  v.  Den- 
ham,  54  Ga.  224;  Johnson  v.  Camp, 
51  lU.  219;  Carpenter  v.  Barber,  44 
Vt.  441;  Cole  v.  Curtis,  IG  Minn.  182; 
Ash  V.  Marlow,  20  Ohio,  119. 

2  01mstead  v.  Partridge,  16  Gray, 
381;  Scuuton  v.  Hart,  27  Mich.  539; 
Livingston  v.  Burrouglis,  33  Mich. 
511;  Strand  v.  Young,  36  Md.  246. 


YiS  EXEMPLiiRY    DAMAGES. 

an  attorney  at  law,  or  believed  by  the  defendant  to  be  such.' 
In  such  case  it  is  a  material  question  whether  the  defendant 
acted  prudently,  wisely  and  in  good  faith,  and  for  this  purpose 
information,  on  which  he  acted,  whether  true  or  false,  is 
original  and  material  evidence.^ 

Bad  motive  by  itself  is  no  tort.  Malicious  motives  make  a 
bad  act  worse,  but  they  cannot  make  that  a  wrong  which  in  its 
own  essence  is  lawful.*  But  one  who  does  an  act  maliciously, 
must  be  careful  to  see  that  the  act  is  lawful ;  otherwise,  though 
the  actual  injury  may  be  slight,  the  exemplary  damages  may 
be  considerable. 

Where  there  is,  however,  provocation  or  other  mitigation 
which  reduces  the  actual  damage  to  a  mininum,  there  is  gener- 
ally no  ground  for  punitory  damages.  In  an  action  for  libel, 
where  the  jury  had  rendered  a  verdict  for  one  dollar,  and  a 
motion  was  made  to  set  it  aside  for  inadequacy,^  Peters,  J., 
said :  "  Tlie  legal  signification  of  the  verdict  is,  either  that  there 
was  no  actual  and  express  mahce  entertained  toward  the 
plaintiff  by  the  defendant's  agent,  or  that,  if  there  was,  it  did 
the  plaintiff  no  injury.  There  is  no  room  for  punitive  damages 
here.  There  is  no  foundation  for  them  to  attach  to  or  to 
rest  upon.  It  is  said  in  vindication  of  the  theory  of  punitive 
damages,  that  the  interests  of  the  individual  injured  and 
of  society  are  blended.  Here  the  interests  of  society  have 
virtually  nothing  to  blend  with.  If  the  individual  has  but  a 
nominal  interest,  society  can  have  none.  Such  damages  are  to 
be  awarded  against  a  defendant  for  punishment.  But,  if  the 
individual  injury  is  merely  technical  and  theoretical,  what  is 
punishment  to  be  inflicted  for?  If  a  plaintiff,  upon  all  such  ele- 
ments of  injury  as  were  open  to  him,  is  entitled  to  recover  but 
nominal  damages,  shaU  he  be  the  recipient  of  penalties  awarded 
on  account  of  an  injury  or  a  supposed  injury  to  others  besides 
himself  ?  If  there  is  enough  in  the  defense  to  mitigate  the 
damages  to  the  individual,  so  did  it  mitigate  the  damages  to  the 
pubMc  as  well.  Punitive  damages  are  the  last  to  be  assessed,  in 
the  elements  of  injury  to  be  considered  by  the  jury,  and  should 

1  Murphy  v.  Larson,  77  lU.  172.  ^  Stacy  v.   Portland  Pub.    Co.  G8 

2  Livingston  v.  Burroughs,  supra.      Me.  287. 

3  Jenkins  v.  Fowler,  24  Pa.  St.  308, 
130;  Cooley  on  Torts,  090. 


EXEMPLAKY    DA:sIAGES.  749 

be  the  first  to  be  rejected  by  facts  in  mitigation.  TVe  think  the 
irresistible  inference  is,  that,  if  the  instruction  had  l:)een  given 
as  it  was  requested,  the  verdict  would  not  have  been  increased 
thereby  to  the  extent  of  a  cent.  There  may  be  cases,  no  doubt, 
where  the  actual  damages  would  be  but  small  and  the  punitive 
damages  large.  But  this  is  not  of  such  a  kind.  It  would  have 
been  proper,  in  this  case,  for  the  presiding  justice  to  have 
informed  the  jury,  that,  if  the  actual  damages  were  nominal, 
and  no  more,  they  need  not  award  punitive  damages."  ^  Where 
two  or  more  persons  are  jointty  sued  for  an  assault  and  battery, 
or  other  tort,  only  one  of  whom  acted  from  improper  motives, 
and  was  subject  to  exemplary  damages,  the  damages  against 
all,  beyond  due  compensation,  cannot  be  enhanced  for  the 
motive  of  the  one.^ 

Parties  liable  —  Master  for  act  of  servant. —  Where  the 
master  or  employer  is  liable  for  the  tort  of  his  servant  or  agent, 
he  is  liable  for  full  compensation,  in  view  of  all  the  concomitant 
aggravations.  If  the  servant  commit  a  tort  in  his  master's  ser- 
vice, in  the  exercise  of  his  employment  or  agency,  it  is  deemed, 
at  least  for  the  purpose  of  compensation  to  the  party  injured, 
as  the  act  and  tort  of  the  master.  But  not  for  the  torts  which 
the  servant  steps  aside  from,  or  goes  beyond  his  master's  em- 
plojTnent,  to  commit.^  The  master  is  only  hable  for  the  act  of 
his  servant  when  the  latter  commits  the  act  within  the  scope  of 
his  employment ;  when  he  injuriously  to  others  disregards,  by 
Tortious  act  or  omission,  their  rights  in  the  conduct  of  the 
master's  business.'* 

1  Maxwell  v.  Kennedy,  50  Wis.  64  N.  Y.  129;  Foster  v.  Essex  Bank, 
648-9.  See  Meidel  v.  Anthis,  71  111.  17  Mass.  479;  Crocker  v.  New  Lon- 
241;  Freeze  v.  Tripp,  70  111.  496;  don,  etc.  R.  R.  Co.  24  Conn.  249; 
Ganssly  v.  Perkins,  30  Mich.  492.  Homer  v.  Lawrence,  37  N.  J.  L.  46. 

2  Clark  V.  Newsam,  1  Exch.  131;  ^Id.;  Johnson  v.  Barber,  10  111. 
Becker  v.  Dupree,  75  lU.  167.  425;  Hibbard  v.  New  &  E.  R.  R.  Co. 

SMcManus  v.  Crickett,  1  East,  106-;  15  N.  Y.  455;   Philadelphia,  etc.  R. 

Howe  V.  Newmarch,   12  Allen,  49;  R.  Co.  v.  Derby,  14  How.  U.  S.  468; 

Wright  V.  Wilcox,  19  Wend.  343;  Redding  v.  South  C.  R.  R.  Co.  3  S. 

Richmond  T.    Co.   v.   Vanderbilt,  1  &  C.  N.  S.  1;  Toledo,  etc.   R.  R.  Co. 

Hill,   480;    111.   Cent.   R.    R.    Co.  v.  v.  Harmon,  47  111.  298;  Griswold  v. 

Downey,  18  lU.  259;  Pittsburgh,  etc.  Haven,  25  N.  Y.  595;  Chamberlain 

R.  R.  Co.  V.  Donahue,  70  Pa.  St.  119;  v.  Chandler,  3  Mason,  242;  O'Counell 

Rounds  V.  Delaware,  etc.  R.  R.  Co.  v.  Strong,  Dudley,  S.  C.  265;  Brasher 


T50 


EXEMPLAIiY    DAMAGES. 


The  same  doctrine  applies  wliere  a  corporation  is  the  princi- 
pal, and  the  employment,  in  the  course  of  which  the  servant 
commits  the  tort,  is  within  the  scope  of  the  corporate  powers.^ 
In  their  appropriate  sphere,  corporations  incur  liability  under  the 
same  conditions  as  private  persons ;  they  may  thus  be  guilty  of 
assault  and  battery ,2  slander  and  hbel,'  malicious  prosecution, 
false  imprisonment,*  and  fraud.*  An  action  for  a  wrong  Ues 
against  a  corporation,  where  the  act  of  the  corporation  —  the 
thing  done  —  is  within  the  purpose  of  the  corporation,  and  it  has 
been  done  in  such  a  manner  as  to  constitute  what  would  be  an 
actionable  wrong  if  done  by  a  private  individual.^  There  is  a 
legal  unity  of  principal  and  agent,  as  well  in  respect  to  the 


V.  Kennedy,  10  B.  Mon.  38;  Brack- 
ett  V.  Lubke,  4  Allen,  138;  Taul  v. 
Weston,  47  Vt.  634;  Hays  v.  Millar, 
77  Pa.  St.  238;  Reynolds  v.  Hanra- 
han,  100  Mass.  313;  Smith  v.  Web- 
ster, 23  Mich.  298;  Mahoney  v. 
Mahoney,  51  Cal.  118;  Soutlvwick  v. 
Estes,  7  Cash.  385;  Bulmier  v.  Erie 
R.  Co.  34  N.  J.  L.  151;  Luttrell  v. 
Hazen,  3  Sneed,  20;  Barden  v.  Felch, 
109  Mass.  154:  Kreiter  v.  Nichols,  28 
Mich.  496;  Cosgrove  v.  Ogden,  49  N. 
Y.  255;  Eastern  Counties  R.  Co.  v. 
Broom,  6  Exch.  314;  Seymour  v. 
Greenwood,  7  H.  &  N.  355. 

iRedf.  on  Railways,  3d  ed.  510; 
Hanson  v.  European,  etc.  R.  R.  Co. 
62  Me.  84;  Goddard  v.  Grand  T.  R. 
Co.  57  Me.  202;  Atlantic,  etc.  R.  R. 
Co.  V.  Dunn,  19  Ohio  St.  162;  Pas- 
senger R.  R.  Co.  V.  Yoimg,  21  Ohio 
St.  518;  Brokaw  v.  New  Jersey,  etc. 
R.  R.  Co.  32  N.  J.  L.  328;  Monument 
Bank  v.  Globe  Works,  101  Mass.  57; 
Philadelphia,  etc.  R.  R.  Co.  v. 
Derby,  14  How.  U.  S.  468;  Noyes  v. 
Rutland,  etc.  R.  R.  Co.  27  Vt.  110; 
Jeffersonville,  etc.  R.  R.  Co.  v.  Rog- 
ers, 38  Ind.  116;  Ramsden  v.  Boston, 
etc.  R.  R.  Co.  104  Mass.  117;  Balti- 
more, etc.  R.  R.  Co.  V.  Blocher,  27 
Md.  277;  Green  v.  Omnibus  Co.  7  C. 


B.  N.  S.  290;  Hopkins  v.  Atlantic, 
etc.  R.  R.  Co.  36  N.  H.  9;  Malecek  v. 
Tower  Grove,  etc.  R.  R.  Co.  .57 
Mo.  17. 

2  Atlantic,  etc.  R.  R.  Co.  v.  Dunn. 
19  Ohio  St.  163;  Goddard  v.  Grand 
T.  R.  Co.  57  Me.  202;  Passenger  R. 
R.  Co.  V.  Young,  21  Ohio  St.  518: 
Higgins  V.  Watervliet  I.  &  R.  Co.  46 
N.  Y.  23;  Craker  v.  Chicago,  etc.  R. 
R.  Co.  36  Wis.  657;  Eastern  Counties 
R.  Co.  V.  Brown,  6  Exch.  314;  Sey- 
mour V.  Greenwood,  7  H.  &  N.  355; 
Monument  Bank  v.  Globe  Works, 
100  Mass.  57. 

2  Samuels  v.  Evening  Mail  Asso.  9 
Hun,  288;  Philadelphia,  etc.  R.  R. 
Co.  V.  Quigley,  21  How.  U.  S.  202; 
Whitfield  V.  S.  E.  R.  Co.  96  E.  C.  L. 
115;  Maynard,  etc.  v.  Firemen's,  etc. 
Ins.  Co.  34  Cal.  48;  Aldrich  v.  Press 
Printing  Co.  9  Minn.  133. 

^  Green  v.  Omnibus  Co.  7  C.  B.  N. 
S.  290;  Vance  v.  Erie  R.  R.  Co.  32  N. 
J.  L.  334;  Goodspeed  v.  East  Had- 
dam  Bank,  22  Conn.  530;  Goff  v. 
Great  N.  R.  R.  Co.  3  El.  &  E.  672; 
Roe  V.  Birkenhead,  etc.  R.  R.  Co.  7 
Ex.  36. 

5  Id. ;  Story  on  Agency,  §  452. 

6  Green  v.  Omnibus  Co.  supra,  per 
Erie,  C.  J. 


EXEMPLARY   DAMAGES.       *"  T51 

tortious  as  the  rightful  acts  of  the  latter,  done  in  the  course  of 
his  employment.^ 

This  legal  identity  of  master  and  servant  involves  the  necessary 
legal  consequence  that  the  master  is  responsible  in  damages  for 
the  Avrongful  acts  of  the  servant  done  within  the  scope  of  his 
employment,  to  the  extent  of  full  compensation ;  but  there  is 
some  division  of  judicial  opinion  as  to  the  basis  of  the  master's 
liability  for  exemplary  damages.  The  immediate  ground  of 
such  damages  is,  of  course,  the  malice  or  misconduct  which 
warrant  such  damages  against  a  natural  person ;  but  the  diver- 
sity is  in  respect  to  the  question  whether  the  malice  and  mis- 
conduct of  the  servant  is  the  malice  of  the  principal ;  as  the  act 
which  it  induced  or  accompanies  is  his,  without  particidar 
direction  or  ratification.  In  a  work  of  much  me.rit,  it  is  laid 
down  that  "  in  any  case  where  exemplary  damages  may  be 
recoverable  against  the  servant,  they  shoidd  be  allowed  against 
the  master,  if  it  appears  that  he  had  reasonable  notice  of  the 
negligent  habits  of  the  servant,  or  if  he  left  the  servant  without 
control  or  supervision  in  the  work,"  '^  This  doctrine  is  obviously 
sound ;  but  it  is  based  on  an  actual  fault  of  the  master,  not  solely 
on  that  of  the  servant ;  the  conclusion  of  liability  does  not  result 
purely  from  the  identity  of  master  and  servant. 

In  a  late  Kew  York  case,*  Church,  C.  J.,  said :  "  For  injuries 
by  the  neghgence  of  a  servant  while  engaged  in  the  business  of 
the  master,  within  the  scope  of  his  employment,  the  latter  is 
liable  for  compensatory  damages ;  but  for  such  neghgence,  how- 
ever gross  or  culpable,  he  is  not  hable  to  be  punished  in  punitive 
damages,  unless  he  is  chargeable  with  gross  misconduct.  Such 
misconduct  may  be  established  by  showing  that  the  act  of  the 
servant  was  authorized  or  ratified,  or  that  the  master  employed 
or  retained  the  servant  knowing  that  he  was  incompetent,  or. 
from  bad  habits,  unfit  for  the  position  he  occupied..  Something- 
more  than  ordinary  negligence  is  requisite ;  it  must  be  reckless 
and  of  a  criminal  nature,  and  clearly  estabhshed.  Coi-porations 
incur  this  hability,  as  well  as  private  persons.  If  a  railroad 
company,  for    instance,  knowingly  and   wantonly  employs  a 

iNew  Orleans,  etc.  R.  K.  Co.  v.  scieghorn  v.  N.  Y.  etc.  R.  R.  Co. 

Bailej',  40  ]\Iiss.  452.  56  N.  Y.  47. 

2  Sh.  &  Red.  on  Neg.  §  600. 


ii)'Ji  EXEMPLARY    DAMAGES. 

drunken,  engineer  or  switchman ;  or  retains  one  after  knowledge 
of  his  habits  is  clearly  brought  home  to  the  company ;  or  to  a 
superintending  agent  authorized  to  employ  and  discharge  him ; 
and  injury  occurs  by  reason  of  such  habits,  the  company  may 
and  ouglit  to  be  amenable  to  the  severest  rule  of  damages ;  but 
I  am  not  aware  of  any  principle  which  permits  a  jury  to  award 
exemplary  damages  in  a  case  which  does  not  come  up  to  this 
standard ;  or  to  graduate  the  amount  of  such  damages  by  their 
views  of  the  propriety  of  the  conduct  of  the  defendant,  unless 
such  conduct  is  of  the  character  before  specified."  According 
to  this  view,  as  was  said  by  Metcalf,  J,,  "  the  act  of  a  servant 
is  not  the  act  of  a  master,  even  in  legal  intendment  or  effect, 
unless  the  master  personally  directs  or  subsequently  adopts  it. 
In  other  cases,  he  is  liable  for  the  acts  of  his  servant,  when 
liable  at  all,  not  as  if  the  act  were  done  by  himself,  but  because 
the  law  makes  him  answerable  therefor."  ^ 

It  has  been  often  said  and  decided,  tha,t  the  master  is  not  Ka- 
ble  for  the  voluntary,  wilful  and  malicious  act  of  his  servant  ;2 
but  when  so  held,  according  to  the  best  authorities,  the  servant 
has  gone  outside  the  master's  business  to  commit  the  wrong. 
In  an  English  case  the  court  say :  "  If  a  servant  driving  a  car- 
riage, in  order  to  effect  some  purpose  of  his  own,  wantonly 
strike  the  horses  of  another  person,  and  produce  the  accident, 
the  master  will  not  be  liable.  But  if  in  order  to  perform  his 
master's  orders,  he  strikes,  but  injudiciously,  and  in  order  to  ex- 
tricate himself  from  a  difficulty,  that  will  be  negligent  and 
careless  conduct  for  which  the  master  will  be  liable."  *  And  in 
another :  "  Suppose  a  servant  driving  along  a  road,  in  order  to 
avoid  a  danger,  intentionally  drove  against  a  carriage  of  an- 
other ;  would  not  the  master  be  responsible  ? "  *  Grover,  J.,  in  a 
New  York  case,^  states  the  principle  very  clearly,  A  servant 
employed  to  remove  and  pile  lumber,  had  disobeyed  his  em- 
ployer's orders  in  piling  it  where  it  was  the  cause  of  the  injury 

1  Parsons  v.  Winchell,  5  Cush.  592.  3  Croft  v.  Alison,  4  B.  &  Aid.  590. 

2.8    Dane's    Abr.    ch.    59,    art.    3;  •! Seymour  v.   Greenwood,  6  H.  & 

Wright  V.    Wilcox,    19  Wend.   343;  N.  359. 

Richmond  T.  Co.   v.  Vanderbilt,    1  ^Cosgrove    v.    Ogden,    49   N.   Y. 

Hill,  480;  S.  C.  2  N,  Y.  479;  Story  257. 
on  Agency,  §  456. 


EXEMPLAR Y    DAMAGES.  Y53 

in  question.  The  learned  judge  said:  "It  was  an  act  done  by 
him  in  the  prosecution  of  their  (the  master's)  business,  and  they 
are  not  reheved  from  responsibility  therefor  by  his  departure 
from  their  instructions  in  the  manner  of  doing  it.  The  test  of 
the  master's  responsibility  for  the  act  of  his  servant  is  not 
■whether  such  act  was  done  according  to  the  instnictions  of  the 
master  to  the  servant,  but  whether  it  is  done  in  the  prosecution 
of  the  business  that  the  servant  vras  employed  by  the  master  to 
do.  If  the  owner  of  a  building  employs  a  servant  to  remove 
the  roof  from  his  house,  and  directs  him  to  throw  the  materials 
upon  his  lot,  where  no  one  would  be  endangered,  and  the  ser- 
vant, disregarding  this  direction,  should  carelessly  throw  them 
into  the  street,  causing  an  injury  to  a  passenger,  the  master 
would  be  responsible  therefor,  although  done  in  violation  of  his 
instructions.  But  should  the  servant,  for  some  purpose  of  his 
own,  intentionally  throw  material  upon  a  passenger,  the  master 
would  not  be  responsible  for  the  injury,  because  it  would  not 
be  an  act  done  in  his  business,  but  a  departure  therefrom  by  the 
servant  to  effect  some  purpose  of  his  own."  ^ 

The  same  principle  is  still  more  comprehensively  stated  by 
Hoar,  J. :  "  The  master  is  not  responsible  as  a  trespasser  unless 
by  direct  or  implied  authority  to  the  servant  he  consents  to  the 
wrongful  act.  But  if  a  master  give  an  order  to  a  servant  which. 
impHes  the  use  of  force  and  violence  to  others,  leaving  to  the 
discretion  of  the  servant  to  decide  when  the  occasion  arises  to 
which  the  order  applies,  and  the  extent  and  kind  of  force  to  be 
used,  he  is  liable,  if  the  servant,  in  executing  the  order,  makes 
use  of  force  in  a  manner  or  to  a  degree  which  is  unjustifiable. 
And  in  an  action  of  tort,  in  the  nature  of  an  action  on  the  case, 
the  master  is  not  responsible  if  the  wrong  done  by  the  servant 
is  done  mthout  his  authority,  and  not  for  the  purpose  of  exe- 
cuting his  orders,  or  doing  his  work.  So,  that  if  a  servant, 
wholly  for  a  purpose  of  his  own,  disregarding  the  object  for 
which  he  is  employed,  and  not  intending  by  his  act  to  execute 
it,  does  an  injury  to  another  not  within  the  scope  of  his  em- 
ployment, the  master  is  not  liable.     But  if  the  act  be  done  in 

1  Citing  Weed  v.  The  Panama  R  R.  Co.  17  N.  Y.  363;  Mali  v.  Lord, 
39  N.  Y.  381. 

Vou  1  —  48 


754  EXEMPLARY   DAMAGES. 

the  execution  of  the  authority  given  him  by  his  master,  and  for 
the  purpose  of  performing  what  the  master  has  directed,  the 
master  will  be  responsible,  whether  the  wrong  done  be  occa- 
sioned by  negligence,  or  by  a  wanton  or  reckless  purpose  to 
accomphsh  the  master's  business  in  an  unlawful  manner."  ^ 
Accordingly,  in  a  subsequent  case,  it  was  held  that  a  master 
who  orders  his  servants  to  go  to  the  house  of  a  person  named 
and  remove  certain  furniture,  if  a  sum  due  the  master  thereon  is 
not  paid,  is  liable  for  a  wilful  assault,  committed  by  the  ser- 
vants, if  done  in  the  execution  of  the  order,  and  not  for  some 
private  end  or  advantage  of  the  servants,^  The  wantonness  or 
mischief  done  by  the  servant  in  the  execution  of  his  master's 
orders  will  enhance  the  damages  against  the  latter.'  Eyan, 
C.  J.,  in  an  action  against  a  railroad  company  for  the  wanton 
outrage  committed  by  a  conductor  in  attempting  to  kiss  a  fe- 
male passenger,  thus  illustrated  the  fallacy  of  any  distinction, 
in  the  liability  of  the  master,  between  wilful  and  negligent  in- 
juries :  "  We  do  not  understand  it  to  be  denied  that  if  such  an 
assault  on  the  respondent  had  been  attempted  by  a  stranger, 
and  the  conductor  had  neglected  to  protect  her,  the  appellant 
would  be  lialjle.  But  it  is  denied  that  the  act  of  the  conductor 
in  maliciously  doing  himself  what  it  was  his  duty,  for  the  ap- 
pellant to  the  respondent,  to  jirevent  others  from  doing,  makes 
the  appellant  liable.  It  is  contended  that,  though  the  principal 
would  be  liable  for  the  negligent  failure  of  the  agent  to  fulfil 
the  principal's  contract,  the  principal  is  not  habie  for  the  ma- 
hcious  breach,  by  the  agent,  of  the  contract  which  he  was  ap- 
pointed to  perform  for  the  principal.  As  we  understand  it,  that 
if  one  hire  out  his  dog  to  guard  sheep  against  wolves,  and  the 
dog  sleep  while  a  wolf  makes  away  with  a  sheep,  the  owner  is 
liable ;  but  if  the  dog  play  wolf  and  devour  the  sheep  himself, 
the  owner  is  not  liable.  The  bare  statement  of  the  proposition 
seems  a  reductio  ad  dbsurdumy  ■* 

In  those  states  where  exemplary  damages  are  hmited  to  com- 

1  Howe  V.  Newmarch,  13  Allen,  56.  Harmon,  47  El.  398;    Chicago,  etc. 

2  Levi  V.  Brooks,    131   Mass.    501;  R.  R.  Co.  v.  Dickson,  63  III.  151. 
Passenger  R.   R.  Co.  v.  Young,  31  ^jjawes  v.  Kuowles,  114Mass.  518. 
Ohio  St.  534-5;  Barden  v.  Felch,  109  ^Craker  v.  Chicago,  etc.  R.  R.  Co. 
Mass.   154;  Toledo,  etc.  R.  R.  Co.  v.  36  Wis.  673. 


EXE]SIPLAEY    DAMAGES.  7 00 

pensation,  and  the  punitive  element  is  excluded,  when  the  mas- 
ter's liability  for  the  servant's  act  is  determined,  the  whole 
question  is  resolved.  If  he  is  liable  for  the  act,  he  is  liable  for 
the  increased  injury  which  results  from  the  manner  in  which  it 
is  done.  But  where  the  element  of  punishment  is  admitted,  in 
some  states  it  is  held  that  though  the  misconduct  took  place 
while  the  servant  was  on  duty  for  his  master,  and  he  did  the 
act  in  the  prosecution  of  his  master's  business,  still  there  must 
be  a  ratification,  unless  the  previous  directions  included  the 
commission  of  the  wrong  in  question.^ 

In  other  states  it  is  held  that  the  master  may  be  liable  to 
punitory  damages  for  the  act  of  his  servant  whep.  the  servant  is  so 
liable,  and  the  aggravated  wrong  was  done  in  the  master's  ser- 
vice, and  under  such  circumstances  that  the  master  is  liable  for 
full  compensation,  though  the  particular  act  was  not  directly  or 
impliedl}'"  authorized  nor  ratified.  In  Ohio,  it  is  held  that  a  cor- 
poration may  be  subjected  to  exemplary  and  punitive  damages 
for  the  tortious  acts  of  its  agents  or  servants,  done  within  the 
scope  of  their  employment,  in  all  cases  where  natural  persons, 
acting  for  themselves,  if  guilty  of  like  tortious  acts,  would  be 
liable  to  such  damages.^  In  a  comparatively  recent  case,  in 
Maine,  this  subject  was  very  thoroughly  considered,  where  a 
railroad  company  was  the  master  and  defendant.^  Walten,  J., 
delivering  the  opinion  of  a  majority  of  the  court,  said :  '*  We 
confess  that  it  seems  to  us  that  there  is  no  class  of  cases  Avhere 
the  doctrine  of  exemplary  damages  can  be  more  beneficially 
apphed  than  to  railroad  corporations  in  their  capacity  of  car- 
riers of  passengers ;  and  it  might  as  well  not  be  applied  to  them 
at  all,  as  to  limit  its  application  to  cases  where  the  servant  is 
directly  or  impliedly  commanded  by  the  corporation  to  mal- 

1  Hagan  v.  Providence,  etc.  R.  R.  Wheat.  546;  Moody  v.  McDonald,  4 

Co.   3  R.   I.   88;    Turner  v.    North  Cal.  297;    Railroad  Co.   v.  Fenuey, 

Beach,  etc.  R.  R.-  Co.  34  Cal.  594;  10  Wis.  388;  Craker  v.  Chicago,  etc. 

KUne  V.  Cent.  Pacif.  R.  R.  Co.  37  R.  R.  Co.  36  Wis.   657;  Bass  v.  Chi-  - 

Cal.  400;  Ackerson  v.  Erie  R.  R.  Co.  cago,  etc.  R.  R.  Co.  42  Wis.  654. 

32  N.  J.  L.  254;  McKeon  V.  Citizens'  2  The    Atlantic,    etc.     R.    Co.     v. 

R.  Co.  42  Mo.    79;    Louisville,   etc.  Dunn,  19  Ohio  St.  162. 

R.   R.  Co.  V.  Smith,  2  Duval,  556;  3  Goddard  v.  Grand  T.  R.   57  Me. 

Hill  V.  New  Orleans,  etc.  R.  R.  Co.  202,  223. 
11  La.  Ann.  292;  Amiable  Nancy,  3 


750  EXEMPLARY    DAMAGES. 

treat  and  insult  a  passenger,  or  to  cases  where  sucli  an  act  is  di- 
rectly or  impliedly  ratified;  for  no  such  cases  will  occur.  A 
corporation  is  an  imaginary  being.  It  has  no  mind  but  the 
mind  of  its  servants ;  it  has  no  voice  but  the  voice  of  its  ser- 
vants ;  it  has  no  hands  with  which  to  act  but  the  hands  of  its 
servants.  All  its  schemes  of  mischief,  as  well  as  schemes  of 
public  enterprise,  are  conceived  by  human  minds  and  executed 
by  human  hands;  and  these  minds  and  hands  are  servants' 
minds  and  hands.  All  attempts,  therefore,  to  distinguish  be- 
tween the  guilt  of  the  servant  and  the  guilt  of  the  corporation ; 
or  the  malice  of  the  servant  and  the  malice  of  the  corporation ; 
or  the  punishment  of  the  servant  and  the  punishment  of  the  cor- 
poration, is  sheer  nonsence,  and  only  tends  to  confuse  the 
mind  and  confound  the  judgment.  IS^either  guilt,  malice,  nor 
suffering  is  predicable  of  this  ideal  existence,  called  a  corpora- 
tion. And  yet,  under  cover  of  its  name  and  authority,  there  is, 
in  fact,  as  much  wickedness,  and  as  much  that  is  deserving  of 
punishment,  as  can  be  found  anywhere  else.  And  since  these 
ideal  existences  can  neither  be  hung,  imprisoned,  whipped  or 
put  in  the  stocks, —  since,  in  fact,  no  corrective  influence  can  be 
brought  to  bear  upon  them  except  that  of  pecuniary  loss, —  it  does 
seem  to  us  that  the  doctrine  of  exemplary  damages  is  more 
beneficial  in  its  application  to  them  than  in  its  application  to 
natural  persons.  If  those  who  are  in  the  habit  of  thinking  that 
it  is  a  terrible  hardship  to  punish  an  innocent  corporation  for  the 
wickedness  of  its  agents  and  servants,  will,  for  a  moment,  reflect 
upon  the  absurdity  of  their  own  thoughts,  this  anxiety  will  be 
cured.  Careful  engineers  can  be  selected  who  wiU  not  run 
their  trains  into  open  draws ;  and  careful  baggage-men  can  be 
secured  who  will  not  handle  and  smash  trunks  and  band-boxes, 
as  is  now  the  universal  custom ;  and  conductors  and  brakemen 
can  be  had  who  will  not  assault  and  insult  passengers ;  and  if 
the  courts  will  only  let  the  verdicts  of  upright  and  intelligent 
juries  alone,  and  let  the  doctrine  of  exemplary  damages  have  its 
legitimate  influence,  these  great  and  growing  evils  will  be  very 
much  lessened,  if  not  entirely  cured.  There  is  but  one  vulner- 
able point  about  these  ideal  existences  called  corporations ;  and 
that  is  the  pocket  of  the  monied  power  that  is  concealed  behind 
them;  and,  if  that  is  reached,  they  will  wince.     "When  it  is 


EXEMPLAliY   DAMAGES.  767 

thoroughly  understood  that  it  is  not  profitable  to  employ  care- 
less and  indifferent  agents,  or  reckless  and  insolent  servants, 
better  men  will  take  their  places,  and  not  before."  ^ 

In  'Sew  Hampshire,  Mississippi,  Kentucky,  Maryland,  Illinois, 
l^evada,  and  Missouri,  substantially  the  same  view  of  the  liabil- 
ity of  corporations  to  punitory  damages  prevails.^ 

Kyan,  C.  J.,'  speaking  for  the  whole  court  in  Wisconsin,  on 
the  right  of  railroad  companies  to  adopt  and  enforce  reasonable 
regulations  for  the  safety  and  convenience  of  passengers,  as  well 
as  their  own  security,  vindicates  also  the  soundness  of  the  prin- 
ciple that  the  company  may  incur,  through  its  agents,  a  liabiUty 
for  vindictive  damages,  if  they  are  allowable  at  all,  although 
that  com-t  has  not  fully  accepted  it.  Referring  to  the  ofiBcers 
in  charge  of  a  passenger  train,  he  says :  "  These  officers  may 
be  guilty  of  acts  of  arbitrary  oppression,  beyond  endurance, 
toward  passengers,  which  might  warrant  resistance.  But  we 
feel  warranted,  by  principle  and  authority  to  hold,  that,  in  the 
enforcement  of  order  on  the  train,  and  in  the  execution  of  rea- 
sonable regulations  for  the  safety  and  comfort  of  the  passengers, 
and  for  the  security  of  the  train,  the  authority  of  these  officers, 
exercised  upon  the  responsibility  of  the  corporations,  must  be 
obeyed  by  the  passengers,  and  that  forcible  resistance  cannot  be 
tolerated.  They  act  on  the  peril  of  the  corporation,  and  their 
own.  Indeed,  as  that  fictitious  entity,  the  corporation,  can  act 
only  through  natural  persons,  its  officers  and  servants,  and  as 
it  of  necessity  commits  its  trains  absolutely  to  the  charge  of 
officers  of  its  own  appointment,  and  passengers  of  necessity 
commit   to  them  their  safety  and  comfort  m  transitu,  under 

1  Hanson  v.  E.  &  N.  A.  R.  R.  Co.  Jacobs'  Adm'r  v.  Louisville,  etc.  R. 
62  Me.  84.  R.  Co.  10  Bush,  263;  Perkins  v.  Mis- 

2  Hopkins  v.  Atlantic,  etc.  R.  R.  souri,  etc.  R.  R.  Co.  55  Mo.  201; 
Co.  36  N.  H.  9;  Vicksburgh,  etc.  R.  Travers  v.  Kansas  Pacific  R.  R.  Co. 
R.  Co.  V.  Patton,  31  Miss.  156;  New  63  Mo.  421;  Chicago,  etc.  R.  R.  Co. 
Orleans,  etc.  R.  R.  Co.  v.  Burke,  53  v,  Dickinson,  63  111.  151;  Illinois  C, 
Miss.  200;  New  Orleans,  etc.  R.  R.  R.  R.  Co.  v.  Hammer,  72  111.  353; 
Co.  V.  Hurst,  36  Miss.  660;  New  Or-  Singer  Man,  Co.  v.  Holdfodt,  86  111. 
leans,  etc.  R.  R.  Co,  v.  Bailey,  40  459;  Quigley  v.  Cent.  Pa.  R.  R.  Co. 
Miss.  395;  Bowler  v.  Lane,  3  Met.  11  Nev.  364-5;  Redf.  on  Railw.  515 
(Ky.)  311;  Louisville,  etc.  R,  R.  Co.  et  seq. 

V.  Mahony,  7  Bush,  235;  Baltimore,  3  Bass  v.  C.  &  N.  W.  R.  R.  Co.  36 
etc.  R.  R.  Co.  V.  Blocher,  27  Md.  277;     Wis.  463. 


Y58  EXEMrLARY    DA3IAGES. 

conditions  of  such  peril  and  subordination,  we  are  disposed  to 
hold  that  the  whole  power  and  authority  of  the  corporation, 
Ijro  hac  vice,  is  vested  in  these  oiRcers ;  and  that  as  to  pas- 
sengers on  board,  they  are  to  be  considered  as  tlie  corporation 
itself;  and  that  the  consequent  authority  and  responsibility  are 
not  generally  to  be  straitened  or  impaired  by  any  arrangement 
between  the  corporation  and  the  officers ;  the  corporation  being 
responsible  for  the  acts  of  the  officers  in  the  conduct  and  gov- 
ernment of  the  train,  to  the  passengers  traveling  by  it,  as  the 
officers  would  be  fo"*'  themselves,  if  they  were  themselves  the 
owners  of  the  road  and  train.  We  consider  this  rule  essential 
to  public  convenience  and  safety,  and  sanctioned  by  great  weight 
of  authority,"  ^ 

Exemplary  damages  may  be  recovered  against  public  officers 
where  the  proper  facts  appear.^  They  may  be  recovered  against 
an  officer  acting  under  color  of  process  and  committing  a 
malicious  trespass.' 

Municipal  corporations  cannot  be  subjected  to  vindictive  dam- 
ages ;  *  and  such  damages  are  not  recoverable  from  the  estate,  or 
against  the  personal  representatives  of  the  deceased  wrongdoer.'^ 

1  Citing  Commonwealth  v.  Power,  Bush,  147;  Higgins  v.  Watervliet  T. 

7  Met.  596;   Day  v.   Owen,    5  Mich.  Co.  46  N.  Y.  43;  Baltimore,  etc.  R. 

520;    Jencks  v.    Coleman,   3  Sumn.  R.  Co.  v.  Blocher,  27  Md.  277;  Chi- 

221;    Pittsburgh,  etc.   R.  R.  Co.  v.  cago,  etc.  R.  R.  Co.  v.  Parks,  18  HI. 

Hinds,  53  Pa.  St.  512;  Philadelphia,  460;  Goddard  v.  Grand  T.  R.  Co.  57 

etc.  R.  R.  Co.  V.  Derby,  14  How.  U.  Me.  202;  2  Redf.  220,  230. 

S.  468;  Chamberlain  v.  Chandler,  3  ^  Parker  v.  Shackleford,  61  Mo.  68. 

Mason,  242;  Nieto  v.  Clark,  1  Cliff.  3  Nightingale  v.  ScanneU,  18  Cal. 

145;  Stephen  v.   Smith,  29  Vt.  160;  315;  Loader  v.  Hinson,  4  Jones'  L. 

Moore  v.  FitchburgR.  R.  Co.  4  Gray,  369;  Anon.  1  Minor,  52;  Rodgers  v. 

465;  Vinton  v.  Middlesex  R.  R.  Co.  Ferguson,  36  Tex.  544. 

11  AUen,  304;  Coleman  v.  N.  Y.  &  *  Chicago  v.  Lunglass,  52  111.  259; 

N.  H.  R.  R.  Co.  106  Mass.  160;  Sulli-  Chicago  v.  Kelly,  69  lU.  475. 

van  V.  P.  &  R.  R.  R.  Co.  30  Pa.  St.  ^Wright's   Adm'r  v.  DonneU,   34 

324;  Penu.  R.  R.  Co.  v.  Vandiver,  42  Tex.  291;  Rippey  v.  Miller,  11  Ired. 

Pa.   St.   365;  Sherley  v.   Billings,  8  L.  247. 


PLEADING.  T59 

CHAPTER  X. 

PLEADING  AND  PROCEDURE. 

Section  1. 

pleading. 

Plaintiff  must  state  a  case  which  entitles  him  to  damages  —  The  ad  dam- 
num—  Demand  of  damages  in  a  complaint  under  the  code  —  Effect  of 
not  answering  allegations  of  damage  —  Ad  damnum  limits  plaintiff's 
recovery — What  provable  under  general  allegation  of  damage  —  Spe- 
cial damage  must  he  alleged  —  Illustrations  —  Not  necessary  to  allege 
matter  of  aggravation;  if  alleged,  not  traversable  —  Not  necessary  to 
itemize  damages  in  pleading  —  Statutory  damages  must  be  sjjecially 
claimed  and  alleged. 

Plaintiff  isiust  state  a  case  which  entitles  hevi  to  dajsi- 
AGEs. — It  is  of  coui"se  of  paramount  importance  that  the  plaint- 
iff, suing  for  damages,  should  state  such  a  case  as  entitles  him 
to  damages.  It  is  enough,  on  demurrer,  that  he  states  a  case 
^Yhich  gives  him  at  least  a  right  to  nominal  damages.^  A  party 
cannot  by  a  claim  of  damages  give  himself  a  right  to  recover 
more  than  the  facts  stated  by  him  wiU.  warrant.^  But  when  in 
an  action  sounding  in  damages,  the  plaintiff  does  claim  more 
damages  than  on  the  face  of  his  declaration  appears  to  be  due, 
it  wiU  not  vitiate  a  verdict :  for  the  amount  of  the  damages 
being  ascertained  b^''  the  jury,  it  is  to  be  presumed  that  they 
were  assessed  according  to  the  proof.^  In  an  orderly  statement 
of  a  case  brought  for  such  redress,  there  should  be  a  formal 
allegation  of  damages. 

The  ad  daininum. —  The  ad  damnum  is  the  logical  and  legal 
sequence  of  the  case  stated ;  but  as  the  damage  can  only  be 
claimed  as  the  legal  result  of  the  case  stated,  when  proved,  and 

1  Parker    v.    Griswold,    19    Conn.  Gould,  18  Abb.  N.  S.  424;  S.  C.   19 

288;  Cowley  v,  Davidson,  10  Minn.  N.  Y.  2G2. 

;392;  Wilson  v.  Clarke.  20  Minn.  367;  2  Murphy  v.  Evans,  11  Ind.  517. 

Hood  V.  Pabn,  8  Pa.  St.  237.     See  3  Ex'r  of  Van  Rensselaer  v.  Ex'r  of 

Gould  V.  Allen,  1  Wend.  182;  Rider  Plainer,  2  John.  Ca,  17. 
V.  Pond,  28  Barb.  447;  Thompson  v. 


TOO  PLEADING    AJSTD   PEOCEDUKE. 

the  ad  damnum  is  but  the  legal  conclusion  therefrom,  it  is  not 
of  substance,  and  if  omitted  or  left  blank  the  judgment  will 
nevertheless  be  sustained.^ 

Wliore  the  declaration  contains  several  counts,  concluding 
with  the  common  counts,  and  no  damages  are  laid  in  a  particu- 
lar count,  the  court  will  intend  the  general  averment  of  dam- 
ages at  the  close  of  the  common  counts  to  apply  to  it.^  The 
general  damage  laid  at  the  conclusion  of  a  declaration  in  the 
ordinary  form  is  distributable  over  the  several  counts  in 
the  declaration.^ 

Demand  of  daisiages  in  a  complaint  under  the  code. — 
Under  the  code,  the  claim  of  damages  is  essential  when  judg- 
ment is  taken  by  default ;  such  a  judgment  is  erroneous,  if  no 
amount  of  damages,  nor  a  prayer  for  damages,  be  contained  in 
the  complaint,  notwithstanding  the  complaint  states  facts  suffi- 
cient to  sustain  a  judgment  for  damages.^  The  code  requires 
that  the  complaint  shall  contain  a  demand  for  the  relief  which 
the  plaintiff  claims ;  but  compliance  is  principally  important  in 
cases  where  there  is  failure  to  answer,  for  the  court  is  author- 


iMattingly  v.  Darwin,  23  111.  618;  tory  rate  of  interest,  they  need  not 

Galena,  etc.  R.  R.  Co.  v.   Appleby,  be  laid  either  in  the  writ  or  declara- 

38  111.  283;    Hargrave  v.  Penrod,  1  tion.     Digges  v.  Norris,  8   Hen,  & 

lU.  (Breese)  401;  Bank  of  Metropolis  Munf.   268;    Palmer    v,    Euback,    3 

V.  Guttschlick,    14  Pet.  19;   Proctor  Hen.    «fc    Munf.    502;     Kennedy  v. 

V.  Crozier,  6  B.  Mon.  268;  CraghUl  Woods,  3  Bibb,  322.     See  Snow  v. 

V.     Page,    2    Hen.    &     Munf.    446;  Grace,  25  Ark.  570;  Henry  v.  Swea- 

Stephens  v.  White,   2  Wash.  (Va.)  sey,  5  Blackf.  273;   Gilligan  v.  New 

260.     Held  to  be  necessary  and  mat-  York,  etc.  R.  R.  Co,  1  E.  D.  Smith, 

ter  of    substance  in    Brownson  v.  453. 

Wallace,  4  Blatchf.  465.  ^^dams  v.  McMillan,  7  Port.  73. 

In  Bumpass  v,  Webb,  3  Ala.  109,  3  GeU  v.  Burgess,  7  C.  B.  16. 

it  was  held  that  though  the  declara-  ^  Pittsburgh  Coal  M.  Co.  v.  Green- 

tion  omit  to  lay  damages,  yet  if  they  wood,  39  Cal.  71;  Rann  v.  Reynolds, 

are  laid  in  the  wx-it,  the  declaration  11  Cal.  14;  Gage  v.  Rogers,  20  Cal. 

is  unobjectionable.     In  such  a  case,  91;  Lamping  v.  Hyatt,  27  Cal.  102; 

the  declaration  being  amendable  in  Gantier  v.  English,  29  Cal,  165;  Par- 

the  trial  court,  on  error,  it  will  be  rott  v.    Den,    34  Cal.   79;    Bond  v. 

considered  as  amended.     Where  the  Pacheco,  30  Cal.  530;   Simonson  v. 

cause  of  action  is  a  legal  liability,  Blake,  12  Abb,    Pr.    331;  Walter  v. 

certain  and  defined,  as  a  promissoiy  Waltor,  32  Barb.  203;   Andrews  v, 

note,  the  damages  being  the  statu-  Mainlaws,  8  Hun,  65. 


PLEADING. 


761 


ized  to  grant  any  relief  consistent  with  the  case  made  by  the 
complaint  and  embraced  within  the  issue.^ 

Effect  of  nx)t  answering  allegations  of  damage. —  The 
statement  of  the  amount  of  damages  is  in  some  jurisdictions 
deemed  an  issuable  fact ;  ^  in  others  it  is  not.* 

In  the  common  law  action  of  trespass,  where  the  defendant 
fails  to  support  by  proof  a  special  plea  in  bar,  a  trespass  or 
cause  of  action  of  the  general  natm^e  set  forth  in  the  declara- 
tion is  admitted ;  but  the  trespasses  precisely  as  laid  in  all  their 
particulars  and  variety,  are  not  admitted.  The  failure  of  the 
defendant  to  prove  his  plea  entitles  the  plaintiff  to  nominal 
damages,  but  nothing  beyond,  untO.  he  shows  by  proof  a  claim 
to  greater  damages.* 

Ad  DAiiNUii  LnnTS  the  plaintiff's  eecoveet. —  The  ad  dam- 
num limits  the  plaintiff's  recovery.  He  cannot  take  judgment 
for  a  greater  sum.     If  he  does,  it  is  error.^    The  plaintiff  may  be 


lEstee  PI.  &  F.  199;  2  Wait  Pr. 
387;  Nevada  Co.  etc.  Co.  v.  Kidd,  37 
Cal.  283. 

2 Patterson  v.  Ely,  19  Cal.  28:  Dim- 
ick  V.  Campbell,  31  Cal.  238;  Cariyon 
V.  Lannon,  4  Nev.  156;  White  v. 
The  N.  W.  Stage  Co.  5  Oregon,  99; 
Huston  V.  The  Twin,  etc.  Road  Co. 
45  Cal.  550. 

SMcLees  v.  Felt,  11  Ind.  218;  Ray- 
mond V.  Traffarn,  12  Abb.  Pr.  52; 
Connass  v.  Meir,  2  E.  D.  Smith,  314; 
McKensie  v.  Farrell,  4  Bosw.  192; 
Woodmff  V.  Cork,  25  Barb.  505. 

4  Rich  V.  Rich,  16  Wend.  663. 

Under  a  replication  de  injuria  to 
a  plea  of  son  assault  demesne,  the 
defendant  cannot  give  evidence  in 
mitigation  of  damages,  to  contra- 
dict the  averment  of  aggravated  in- 
juries laid  in  the  narr:  he  is  con- 
fined to  i^roving  an  excuse  for  the 
battery.  He  was  not  entitled  for 
this  reason  to  show  that  he  had  been 
indicted,  convicted  and  piinished 
for  the  same  battery  in  mitigation. 
The  general  rule  in  regard  to  such  a 


replication  is,  that,  as  it  puts  in  issue 
only  tlie  matter  alleged  in  the  plea, 
nothing  can  be  given  in  evidence 
under  it  which  is  beyond  and  out  of 
the  plea.  Frederick  v.  Gilbert,  8 
Pa.  St.  454;  2  Greenlf.  Ev.  §  96. 

An  assessment  of  damages  by 
jury,  at  common  law,  is  necessary, 
though  those  alleged  in  the  declara- 
tion be  not  denied,  Thompson  v. 
Thompson,  7  B.  Mon.  421;  Wells  v. 
Commonwealth,  8  B.  Mon.  459. 

sFlournoy  v.   Childress,  1  Minor 
(Ala.),  !l3;  Derrick  v.  Jones,  1  Stew. 
18;  McWhorter  v.   Sayre,    2  Stew. 
225;  HaU  v.  HaU,  42  Ind.  585;  White 
V.   Cannada,  25  Ark.    41;  Annis  v. 
Upton,  66  Barb.  370;  KeUey  v.  Third 
Nat.  Bank,  64  111.  541;  Robinett  v. 
Morris,  Adm'r,  Hardin,  93;  Daven- 
port V.  Bradley,  4  Conn.  309;  Hen- 
derson   V.     Staintor,    Hardin,    118 
Moore  v.   Rep.    Texas,  1   Tex.  563 
McLellan  v.  Crofton,  6  Greenl.  307 
Palmer  v.  Reynolds.  3  Cal.  396:  Dox 
V.  Dey,  3  Wend.  356;  Snow  v.  Grace, 
25  Ark.  570;  Cheveley  v,  Morris,  3 


^63 


PLEADING    AND    PKOCEDUKE. 


allowed,  in  the  discretion  of  the  court,  to  amend  the  ad  damnum, 
by  increasing  it,  before  or  at  the  trial,  and  even  after  verdict  — 
or  he  may  be  permitted  to  cure  the  error  of  a  larger  verdict  by 
remittitur}    An  erroneous  claim  of  damages  in  a  declaration 


W.  Bl.  1300;  Mclntire  v.  Clark,  7 
Weud.  330;  Lake  v.  MerriU,  10  N.  J. 
L.  288;  Herbert  v.  Hardenberg,  ION. 
J.  L.  223;  Hawk  v.  Anderson,  9  N. 
J.  L.  319;  Cortelyou  v.  Cortelyou,  2 
N.  J.  L.  318;  Daniel  v.  Park,  2  N.  J. 
L.  1004;  Rowan  v.  Lee,  3  J.  J,  Marsh. 
97;  Edwards  v.  Weister,  2  A.  K. 
Marsh.  382;  Harris  v.  Jaffray,  3 
Harr.  &  J,  543;  Grish  v.  Hodges,  3 
Dev.  203;  Dinsmore  v.  Austill,  Minor 
(Ala.),  89;  Coursey  v.  Corington,  5 
Har.  &  J.  45;  Wilde  v.  Crow,  10  Upp. 
Can.  C.  P.  406. 

In  an  action  of  trespass  to  try 
title  to  land,  the  plaintiif  is  allowed 
to  recover  damages  beyond  the  sum 
laid  in  the  wi-it  and  declaration. 
McWliorter  v.  Standifer,  2  Port. 
519;  Graves  v.  Dodson,  8  Yerg.  161; 
Maloue  v.  DonnaUy,  Minor  (Ala.),  12; 
Boddie  v.  Ely,  3  Stew.  182. 

In  debt,  the  amount  stated  in  the 
caption  is  the  debt  demanded. 
Hampton  v.  Barr,  8  Dana,  578.  The 
ad  damnum  merely  covers  the  inter- 
est (Holf  V.  Hutchinson,  14  How. 
586);  and  where  the  damages  recov- 
ered are  more  than  the  amount  laid 
in  the  declaration,  it  is  held  not  to 
be  error.  Stuart  v.  Davidsoli,  Peck, 
2t)3;  Executors  of  Van  Rensselaer  v. 
Plainer,  2  John.  Cas.  18;  Carver  v. 
Adams,  40  Vt.  552;  Thompson  v. 
French,  10  Yerg.  452.  See  Friedley 
V.  Schultz,  9  S.  &  R.  156.  In  debt 
on  a  bond,  damages  need  not  be  laid 
in  the  declaration  or  found  by  the 
jury.  Taylor  v.  McLean,  3  Call,  481 ; 
Payne  v.  EUzey,  2  Wash.  (Va.)  185; 
AUen  V.  Smith,  12  N.  J.  L.  159. 

Where  the  court  has  jurisdiction 
of  the  parties,  the  ad  damnum  may 
be  amended  by  increasing    or  de- 


creasing it,  to  bring  the  case  within 
its  jurisdiction  as  to  amount.  Mer- 
riU V.  Curtis,  57  Me.  152;  Converse 
V.  Damariscotta  Bank,  15  Me.  431; 
Hart  V.  Waitt,  3  Allen,  532;  Mc- 
Lellan  v.  Crofton,  6  Greenlf.  307. 
But  see  Hoit  v.  Malony,  2  N.  H.  322; 
Flanders  v.  Atkinson,  18  N.  H.  167; 
Taylor  v.  Jones,  42  N.  H.  25;  Mo- 
Quade  v.  O'Neil,  15  Gray,  52. 

1  Johnson  v.  Brown,  57  Barb.  118; 
Taylor  v.  Jones,  42  N.  H.  25;  Pierson 
V.  Finney,  37  lU.  29;  Schneider  v. 
Seely,  40  lU.  257;  Pickering  v.  Pulsi- 
fer,  9  111.  79;  Dox  v.  Dey,  3  Wend. 
356;  Cahill  v.  Pmtony,  4  Munf.  371; 
Lewis  V.  Cooke,  1  Harr.  &  McH. 
159;  Green  v.  Wright,  8  M.  &  W. 
360;  Lautz  v.  Frey,  19  Pa.  St.  366; 
Pickwood  V.  Wright,  1  H.  Bl.  643; 
Hardy  v.  Cathcart,  1  Marsh.  180; 
Usher  v.  Dansey,  4  M.  &  S.  94;  Deano 
V.  O'Brien,  13  Abb.  11;  Grass  VaUey 
M.  Co.  V.  Stackhouse,  6  Cal.  413; 
Baltzell  V.  Hickman,  4  Litt.  265; 
Wilde  V.  Crow,  10  Up.  Can.  C.  P. 
406;  Fowlker  v.  Webber,  8  Hamp. 
500;  Corning  v.  Corning,  2  Seld.  97. 
The  excess  may  be  cured  by  amend- 
ment on  error,  when  the  record 
shows  something  to  amend  by 
(Miller  v.  AVeeks,  22  Pa.  St.  89);  or  is 
authorized  to  try  the  case  as  though 
originally  brought  there  (Dressier  v. 
Davis,  12  Wis.  58;  Palmer  v.  Wylie, 
19  John.  276;  Jackson  v.  Covert,  5 
Wend.  139;  Moore  v.  Tracy,  7  Wend. 
229);  or  by  allowing  the  party  to  re- 
mit excess  where  the  appellate  court 
has  power  to  render  such  judg- 
ment as  the  court  below  might  haA^e 
given.  Crabbs'  Ex'r  v.  NashviUe 
Bank,  6  Yerg.  332. 


PLEADIXG. 


763 


does  not  make  it  demurrable ;  objection  should  be  made  to  such 
damages  on  the  trial,^ 

What  provable  under  general  allegation  of  damage. — 
Under  a  general  allegation  of  damages,  the  plaintiff  may  prove 
and  recover  those  damages  which  naturally  and  necessarily  re- 
sult from  the  act  complained  of;  for  these  damages  the  law 
implies  wUl  proceed  from  it.  These  are  called  general,  as  contra- 
distinguished from  special  damages,  which  are  the  natural  but 
not  the  necessary  consequence.^ 

Special  damages  must  be  alleged. —  Special  damages  are 
required  to  be  stated  in  the  declaration  for  notice  to  the  de- 
fendant and  to  prevent  surprise  at  the  trial.'  Under  a  general 
averment  of  damage,  interest  may  be  recovered  on  an  alleged 
breach  of  a  contract  to  pay  money ;  for  it  is  the  precise  legal 
measure  of  damages  on  that  breach.   "When  damages  are  sousrht 


1  Western  Union  Tel.  Co.  v.  Hop- 
kins, 49  Ind.  223;  Dowd  v.  Sea  veil, 
3  Dev.  185;  Leland  t.  Tousley,  6  HiU, 
328. 

2 1  Chitty  s  PL  395-6;  Stevenson  v. 
Smith,  28  Cal.  102;  Roberts  v,  Gra- 
ham, 6  Wall.  578;  Warner  v.  Bacon, 
8  Gray,  397;  Potter  v.  Fromont,  47 
Cal.  165;  Nunan  v,  San  Francisco, 
38  Cal.  689;  Rowand  v.  BiUinger, 
3  Strobh.  L.  373;  Andrews  v.  Stone, 
10  Minn.  72;  Squier  v.  Govdd,  14 
Wend.  159;  Spencer  v.  St.  Paul,  etc. 
R.  R.  Co.  21  Minn.  362;  Wampach  v. 
St.  Paul,  etc.  R.  R.  Co.  21  Minn.  364; 
Alston  V.  Huggins,  2Brev.  309;Fagen 
V.  Davison,  2  Duer,  153;  Bedell  v. 
PoweU,  13  Barb.  183;  Adams  v. 
Barry,  10  Gray,  361;  Cole  v.  Swans- 
ton,  1  Cal.  51;  Ryerson  v.  Mai'seillis, 
16  N.  J.  L.  450;  Trenton  M.  Life,  etc. 
Ins.  Co.  V.  Perrine,  23  N.  J.  L.  402; 
Strang  v.  Whitehead,  12  Wend.  64; 
Vanderslice  v.  Newton,  4  N.  Y.  130; 
Burrell  v.  N.  Y.  etc,  Co.  14  Mich. 
34;  Bogert  v.  Burkhalter,  2  Barb. 
525;  Tomlinson  v.  Derby,  43  Conn. 
502:  Bristol  Manuf.  Co.  v.  Gridley, 


28  Conn.  201;  Baldwin  v.  Western 
R.  R.  Corp.  4  Gray,  333;  Solms  v. 
Lias,  16  Abb.  Pr.  311;  Phmpton  v. 
Gardiner,  64  Me.  360;  Lewis  v.  Paull, 
42  Ala.  136;  Shaw  v.  Hoffman,  21 
Mich.  151;  Birchard  v.  Booth,  4  Wis. 
67;  Potter  v.  Libbey,  32  Me,  378; 
Agnew  V.  Johnson,  22  Pa.  St.  471; 
Hart  V.  Evans,  8  Pa.  St.  13;  Boyden 
V.  Burke,  14  How.  U.  S,  575;  Ohn- 
stead  V.  Burke,  25  HI.  86;  HaUock  v. 
Belcher,  42  Barb.  199;  Hunter  v. 
Stewart,  47  Me.  419;  Prentiss  v. 
Barnes,  6  Allen,  410;  Stevens  v. 
Lyford,  7  N.  H.  360;  Hutchinson 
V.  Granger,  13  Vt.  386;  Lara  way  v. 
Perkins,  10  N.  Y.  371;  O'Leary  v. 
Rowan,  31  Mo.  117;  Park  v.  Mc- 
Daniels,  37  Vt.  o9t;  Lusk  v.  Briscoe, 
65  Mo.  555;  Adams  v.  Gardner,  78 
lU.  568;  Rice  v.  Coolidge,  121  Mass. 
393;  Gray  v.  Ballard,  22  Minn.  278; 
DeForest  v.  Leete,  16  Jolm.  122;  But- 
ler V.  Kent,  19  Jolin.  228;  Duniont  v. 
Smith,  4  Denio,  319;  Johnson  v.  Von 
Keater,  84  lU.  315. 
^Id. 


764  PLEADING   AND   PKOCEDUKE. 

to  be  recovered  for  a  breach  of  a  special  contract,  the  action 
must  be  upon  that  contract ;  ^  and  when  it  is  so,  under  a  general 
allegation  of  damage,  the  plaintiff  may  prove  and  recover  those 
damages  which  necessarily  result,  and  are  therefore  implied  by 
law,  from  the  breach  assigned.  If  a  contractor  in  a  building 
contract  is  prevented  by  the  other  party  from  fulfilling  it,  under 
such  a  general  allegation,  he  will  be  entitled  to  recover  the  prof- 
its he  would  have  made  had  he  been  suffered  to  complete  the 
work ;  ^  for  breach  of  a  contract  of  sale,  the  profits  with  refer- 
ence to  the  market  value  at  the  time  the  defendant  was  bound 
to  deliver  or  accept  the  goods  according  to  the  contract.  If 
special  circumstances  existed,  entitling  the  purchaser  to  greater 
damages,  for  defeating  a  special  purpose  known  to  the  contract- 
ing parties,  they  must  be  stated,  and  the  facts  which,  under  the 
stated  circumstances,  rendered  the  injury  greater.^ 

Illustrations. —  "Where  the  action  is  for  the  conversion  or 
destruction  of  property,  or  any  tortious  act  or  omission  involv- 
ing its  loss,  the  law  infers  an  injury  measured  by  the  value 
of  the  property,  and  the  injured  party  may  recover  by  that 
standard  under  the  general  averment  of  damage.  But  if  he  is 
entitled  to  recover  other  damages,  they  are  special  and  excep- 
tional, arising  from  special  circumstances,  wliich  must  be 
alleged  and  proved.  Loss  of  subscriptions  will  not  be  legally 
inferred  from  destruction  of  a  subscription  list ;  ^  of  an  account 
from  destruction  of  an  account  book.^  The  expense  of  keeping 
horses,  or  boarding  them  elsewhere,  is  not  a  necessary  result  of 
eviction  from  a  barn;^  nor  is  it  a  necessary  result  of  detaining 
an  animal  that  it  will  be  reduced  in  flesh  by  being  kept  on  short 
pasturage ;  that  from  detaining  a  mare,  a  breeding  season  will 
be  lost.^  A  wrong,  by  which  the  owner  is  deprived  of  possession 
of  his  property,  does  not  necessarily  oblige  him  to  incur  ex- 

1  Royalton  v.  R.  &  AV.  Turnpike  16  N.  Y.  489;  Cole  v.  Swanston,  1 
Co.  14  Vt.  311.  Cal.  50. 

2  Burrell  v.  N.  Y.  etc.  Co.  14  Mich.  ^  Nunan  v.  San  Francisco,  38  CaL 
34.  689. 

3  Fletcher  V.  Tayleur,  17  C.  B.  21;  ^w. 

25  L.  J.  C.  P.  65;  Smeed  v.  Foord,  1  eshaw  v.  Hoffman,  21  Mich.  151. 
E.  &  E.  602;  Messmore  v.  N.  Y.  etc.  7  Stevenson  v.  Smith,  28  Cal.  103. 
Co.  40  N.  Y.  422;   Griffin  v.  Colver, 


PLK.UJIXG.  765 

penses  to  regain  possession;^  er  if  his  horse  is  injured,  expense 
for  his  care  and  cui-e.^  To  recover  for  loss  of  rents,  or  injury  to 
business,  tiiere  must  be  a  statement  of  facts  from  wliicli  such  a 
loss  must  arise,  and  the  allegation  of  a  loss  of  that  kind.' 

But  where  a  tort  or  breach  of  contract  is  so  alleged  that  such 
loss  is  the  direct  and  necessary  consequence,  damages  therefor 
may  be  recovered  under  a  general  allegation  of  damage.^  A 
plaintiff  declared  in  case  that  the  defendant  had  placed  a  quan- 
tity of  sand,  lime  and  other  building  material  in  a  highway, 
opposite  to  and  adjoining  his  premises,  so  as  to  interrupt  the 
free  passage  to  his  store,  and  damaged  his  goods.  It  was  held 
that  proof  that  customers  were  prevented  from  frequenting  the 
store,  and  that  a  tenant,  who  occupied  it,  in  consequence  of  the 
annoyance,  quit  it;  and  that  the  store  afterwards  remained 
unoccupied,  was  inadmissible,  because  not  alleged  in  the  declara- 
tion as  special  damages.^ 

ISTo  more  than  nominal  damages  can  be  recovered  in  an  action 
upon  the  warranty  against  incumbrance  on  a  general  assign- 
ment of  a  breach.  The  fact  that  the  plaintiff  has  discharged  an 
incumbrance  cannot  be  proved  unless  specially  alleged,  for  it 
is  not  a  damage  "necessarily  arising  from  the  breach  assigned.^ 
An  unmarried  woman  cannot  recover  damages  on  account  of 
her  prospects  of  marriage  being  lessened  by  the  personal  injury 
for  which  she  sues,  unless  such  special  damage  be  alleged.'^ 

In  an  action  for  a  nuisance  affecting  the  plaintiff's  premises 
from  a  flow  of  filth  from  the  defendant's  adjacent  privy,  the 
plaintiff  was  not  permitted  to  show  that  the  nuisance  tainted 
his  weU,  from  which  he  was  in  the  habit  of  drawing  to  make 

»  Gray  v.  Ballard,  23  Minn.  278.  Reckert    v.   Snyder,   9  Wend.   416; 

2  Patten  v.  Libbey,  32  Me.  378.  Frances  v.  SchoeUkopf ,  53  N.  Y.  152; 

sWanipach  v.  St.  Paul,  etc.  R.  R.  Richardson  v.  Cliasen,  10  Q.  B.  756; 

Co.  21  Minn.  364;  Agnew  v.  John-  Hart  v.  Evans,  8  Pa.  St.  13;  McKean 

son,  22  Pa.  St.  471;   Spencer  v.   St.  v.    See,   4    Robt.   449;    St.   John  v. 

Paul  R.  R.  Co.  21  Minn.  363;  Plimp-  Mayor,  etc.  6  Duer,  315;  Ruff  v.  Ri- 

ton  V.  Gardiner,  64  Me.  360;  Taylor  naldo,   55  N.   Y.    664;    Laraway  v. 

V.  Dustin,  43  N.  H.  493;  Potter  v.  Perkins,    10  N.  Y.  371;   Dewint  v. 

Fromout,  47  Cal.  165;  Dickinson  v.  Wiltse,  9  Wend.  325. 

Boyle,  17  Pick.  78;  Parker  v.  Lowell,  sSquicr  v.  Gould,  14  Wend.  159. 

11  Sray,  353;  Adams  v.  Barry,  10  g  De  Forest  v.  Leete,  16  John.  122. 

CJray,  861.  ''  Hunter  v.  Stewart,  47  Me.  419. 

^  Juttfi  V.  Hughes,  67  N.  Y.  267; 


7GG  PLEADING   AND   PEOCEDUEE. 

beer,  and  in  consequence  tlie  beer  was  unmerchantable,  because 
not  alleged  as  special  damages.^ 

"Where  damages  are  the  gist  of  the  action  they  must  be 
specially  alleged.^  In  case  of  public  nuisance,  the  plaintiff 
must  aver  special  damages  to  him,  inasmuch  as  the  law  does 
not  presume  or  imply  damage  to  any  particular  individual  from 
the  pubhc  offense.'  But  for  a  private  nuisance,  such  as  turning 
the  course  of  an  ancient  stream,  so  that  it  no  longer  flowed 
through  the  plaintiff's  field,  it  is  an  intendment  of  law  that  the 
plaintiff  is  injured  by  the  loss  of  the  water.  Then  to  deter- 
mine this  damage,  proof  to  show  that  he  was  thereb}''  compelled 
to  haul  water  from  a  distance  to  supply  the  uses  of  the  stream, 
was  held  to  be  only  giving  the  jury  certain  data  from  which 
to  estimate  the  real  damage;  that  it  was  not  a  claim  for  a 
distinct  injury  not  necessarily  resulting  from  the  nuisance.* 

The  law  infers  bodily  pain  and  suffering  from  personal  injury; 
also  loss  of  time  from  its  disabling  effect ;  but  not  loss  of  earn- 
ings in  a  special  employment,  or  from  any  peculiar  condition  of 
the  injured  party ; '  nor  that  expenses  have  been  incurred  for 
medical  or  surgical  aid,  unless  perhaps  in  case  of  very  serious 
injury.^  The  law  also  implies  injury  to  the  feelings  where 
there  is  serious  personal  injury  or  insult ;  also  to  a  parent  in  his 
action  for  seduction  of  his  daughter.'' 

In  an  action  for  false  imprisonment,  the  law  does  not  imply 
injury  from  deficient  food  during  confinement,  or  from  the  bad 
condition  of  the  jail;^  nor  that  expenses  are  incurred  for  the 
services  of  an  attorney  to  get  discharged.® 

'Not  necessakt  to  allege  matter  of  aggravation. —  "Where 
there  are  aggravations  accompanying  a  tort,  it  does  not  appear 
to  be  necessary  in  common  law  pleading  to  specially  aver  them 
m  order  to  let  in  proof  of  them  in  an  action  for  the  tort.'°    In 

iSolms  V.  Lias,  16  Abb.  Pr.  311.  SFolsom  v.  Underbill,  36  Vt.  580. 

2  Swan  V.  Tappan,  5  Gush.  104.  ^phmips  v.  Hoyle,  4  Gray,  568. 

3  Hart  V.  Evan,  8  Pa.  St.  13.  8  Johnson  v.  Von  Kettler,  84  111. 

4  Id.  315. 

5Tomlinson  v.   Derby,   43    Conn.  9  Strang  v.  Whitehead,  13  Wend. 

563;  Taylor  v.  Monroe,  43  Gonn.  36;  64. 

Baldwin  v.  Western  R.  R.  Corp.  4  lOSchofield  v.  Ferrers,  46  Pa.  St. 

Gray,  333.  438. 


PLEADING.  Y67 

an  action  of  replevin,  the  trial  court  instructed  the  jury  that  in 
estimating  damages  they  were  not  confined  to  the  value  of  the 
property ;  but  if  the}^  thouglit  the  taking  was  accompanied  by 
ch-cumstances  of  outrage  and  oppression,  they  could  go  beyond 
the  value.  The  property  was  valued  at  $150,  and  a  verdict  for 
$250  was  sustained,  notwithstanding  objection  that  the  dec- 
laration contained  no  clause  of  special  damage,  or  that  the 
taking  was  accompanied  with  such  aggravation.  Strong,  J., 
said :  "  The  rules  of  pleading  do  not  require  that  the  circum- 
stances attending  the  taking  to  be  specially  aveiTed  to  entitle 
the  plaintiff  to  recover  damages  commensm'ate  "with  them.  If 
consequential  damages  are  claimed,  not  necessarily  or  naturally 
resulting  from  the  tortious  act,  they  must  be  specially  alleged. 
But  if  outrage  and  oppression  attended  the  taking,  they  belong 
to  the  wrongful  act  itself,  and  are  not  merely  special  injury,"  ^ 
It  is  held  that  this  doctrine,  that  the  chcumstances  attending  a 
trespass  to  realty  may  be  given  in  evidence  for  the  purpose  of 
enhancing  damages,  though  not  alleged  in  the  declaration,  does 
not  apply  vfhere  those  circumstances  of  themselves  constitute 
an  independent  cause  of  action,  as  where  in  trespass  de  honis 
there  i?  an  assault  upon  the  person.^  In  an  action  of  trespass 
to  real  estate,  where  the  breaking  and  entering  the  close  was  by 
breaking  down  and  removing  fences,  it  was  held  correct  to 
instruct  the  jury  that  the  breaking  and  entry  were  the  sub- 
stantive ground  of  the  action ;  and  so  far  as  this  was  effected 
by  the  act  or  means  of  brealdng  down  a  fence  belonging  to  the 
close,  the  damage  occasioned  thereby  might  properly  be  taken 
into  consideration  as  part  of  the  damage  to  be  recovered.  It 
was  part  of  the  natural  and  necessary  consequences  of  the  act 
charged.^    In  a  like  action  in  jSTew  Jersey,  it   appeared  that 

1  Schofield  V.  Ferrers,  46  Pa.  St.  Kibbe,  33  lU.  175,  citing  KidgeU  v. 
438.  Moor,  14  Jurist,  790. 

2  Plumb  V.  Ives,  39  Conn.  120;  In  fixing  a  quantum  meruit  for 
Simpson  v.  Markwood,  6  Baxter,  wages  on  a  whaling  voyage,  it  is 
340.  See  Thayer  v.  Sherlock,  4  Mich,  competent  for  the  court  to  take  :n  o 
173.  view  the  unusual  protraction  of  the 

3  Clark  V.  Boardman,  42  Vt.  667.  voyage,  and  the  condition  of  the 
The  allegation  of  special  damages,  vessel  and  the  crew,  though  not 
as  a  matter  of  aggravation,  is  not  an  specially  alleged  or  relied  on  in  the 
inference  of  law  resulting  from  facts  libel.  Allen  v.  Hitch,  2  Cuitis, 
antecedently  stated.     McConneU  v.  147. 


T6S  PLEADING   AND   PKOCEDDKE. 

the  defendant  illegally  entered  upon  the  plaintifif's  premises, 
and  put  upon  his  door  an  insulting,  libelous  hand-bill.  The 
question  arose  whether  the  contents  of  this  hand-bill  could 
be  proved.  Southard,  J.,  said:  ''Is  this  hand-bill  to  be  re- 
garded as  part  of  his  cause  of  complaint,  or  is  it  not  ?  .  .  . 
I  understand  it  to  be  admitted  that  it  was  proper  to  charge  and 
prove  the  putting  up  of  the  hand-bill,  because  it  was  of  the 
same  character  with,  and  a  part  of  the  trespass ;  but  not  proper 
to  charge  or  prove  the  contents  of  the  hand-bill,  because  they  do 
not  partake  of  the  character  of  the  trespass,  and  a  remedy 
for  them  must  be  sought  by  an  action  on  the  case  for  the  libel 
or  slander.  But  I  do  not  perceive  how  the  two  are  to  be  sep- 
arated. The  plaintiff  complains  of  a  trespass.  The  jury  are 
to  determine  the  extent  of  it  and  the  injury  resulting  from  it. 
To  do  this,  they  must  not  only  know  what  was  done,  but,  as  far 
as  possible,  the  motives  with  which  it  was  done.  How  will 
they  learn  them  ?  By  being  informed  that  the  defendant  passed 
over  the  gravel  walk  ?  ]S'o,  for  this  was  not  all  he  did ;  and  this 
he  might  have  done  with  the  best  intentions,  and  have  com- 
mitted no  punishable  trespass.  That  he  put  his  foot  upon  the 
sill  and  left  a  paper  there  ?  l^o,  for  these  acts  might  have  been, 
and  no  harm  done  to  the  plamtiff.  But  this  might  also  have 
been,  and  the  plaintiff  deeply  wounded  by  them.  How  is  the 
jmy,  then,  to  say  whether  he  was  or  was  not  injured?  How  are 
they  to  determine  whether  the  defendant  came  as  a  friend  or 
foe?  to  leave  a  paper  containing  information  salutary  to  his 
safety,  or  poisonous  to  his  reputation  and  peace  ?  to  commit  a 
trespass,  or  to  do  a  kindness  ?  It  can  only  be  done  b}^  looking 
into  the  contents  of  the  hand -bill ;  and  shall  the  jury  be  com- 
pelled to  decide,  and  yet  precluded  from  this  only  means  of 
judging?  Suppose  the  contents  of  the  bill  had  been  of  a  kind 
and  friendly  nature,  and  designed  expressly  for  benefit  to  the 
plaintiff,  would  not  the  defendant  have  been  permitted  to  show 
it?  And  would  not  the  jury  in  such  case  have  refused  the 
plaintiff  anything?  Yet  the  rule  must  operate  both  ways.  A 
man  enters  my  house  and  strikes  my  child,  but  when  he  does 
it,  adds  the  most  malignant  and  unfounded  slanders  of  him. 
May  I  not  charge  or  prove  these  to  show  the  temper  with 
which  he  did  it,  and  the  extent  of  the  wrong?    I  may,  and  the 


PLEADING. 


769 


jury  will  estimate  his  acts  accordingly.  I  understand  the  true 
rule  on  this  point  to  be  this :  in  trespass,  you  may  charge  and 
prove  the  whole  cu'ciimstances  accompanying  the  act,  and  which 
were  part  of  the  res  gestce,  in  order  to  show  the  temper  and 
purposes  with  which  the  trespass  was  committed,  and  the  extent 
of  the  injur}^.  A  contrary  rule  would  certainly  produce  the 
effect  argued  by  the  plaintiff's  counsel.  It  would  take  away  all 
distinction  from  acts  of  trespass."  ^ 

Matter  of  aggravation  not  traversable. —  If  accompany- 
ing circumstances  or  torts  are  stated  by  way  of  aggravation, 
they  are  not  traversable,  and  they  may  be  stated  in  a  very  gen- 
eral manner.  They  are  not  separate  and  substantive  subjects  of 
damage,  but  serve  to  characterize  the  principal  act  which  is  the 
cause  of  action.  That  act  must  be  proved  or  the  action  wiR 
fail,  though  the  matter  alleged  by  way  of  aggravation  be 
proved,  and  would,  if  properly  stated  as  part  of  the  gravamen 
of  the  action,  have  alone  sustained  it.^  Such  accompanying 
facts,  when  of  such  a  nature  as  to  be  ground  for  a  separate 
action,  may  be  alleged  with  certainty  in  connection  with  the 
act  which  otherwise  would  be  the  principal  one,  and  thus  a 
w^rong  which  is  divisible  is,  as  an  entirety,  made  the  subject  of 
the  action.^  Where  trespass  to  real  estate  is  the  gist  of  the 
action,  and  there  is  an  illegal  entry,  whatever  is  done  after  the 
breaking  and  entry  is  but  aggravation  of  damages,*  and  may 
be  proved  to  enhance  damages,  whether  it  miglit  be  the  subject 
of  a  distinct  and  different  action  or  not.     Thus,  if  after  a  tor- 


1  Ogden  V.  Gibbons,  5  N.  J.  L.  518.  4  Bibb,  422;  Carlewis  v.  Laurie,  13 

2  Bracegirdle  v.  Orford,  2  M.  &  S.  Q.  B.  640;  Pritchard  v.  Long,  9  M. 
77;  Russell  v.  Came,  1  Salk.  119;  &,  W.  666;  Thayer  v.  Sherlock,  4 
ISTewman    v.    Smith,    2    Salk.    642;  Mich.  173. 

Chamberlain  v.  Greenfield,  3  Wils.         3  id. ;  Brewer  v.  Temple,  15  How. 

292;  Smalley  v.  Kerfoot,  2  Strange,  Pr.  286;  Robinson  v.  Flint,  16  How. 

1094;  Ford  v.  Kelsey,  4  Rich.    365;  Pr.  240. 

Rucker  v.  McNeeley,  4  Blackf.  179;         *  Brown   v.    Manter,    supra;    Van 

Howard  v.  Black,  42  Vt.  258;  Eames  Leuven  v.  Lyke,  1  N.  Y.  515;  Taylor 

V.  Prentice,  8  Cush.  337;  Bishop  v.  v.  Cole,  3  T.  R.  292;  Smalley  v.  Ker- 

Baker,    19   Pick.    517;    Sampson  v.  foot,    2    Strange,    1094;    Angus    v. 

Henry,  13  Pick.  33;  Brown  v.  Man-  Rudin,  5  N.  J.  L.  815;  Dolph  v.  Fer- 

ter,  22  N.  H.  468;  Howe  v.  Willson,  ris,  7  Watts  &  S.  367;  Beckwith  v, 

1  Denio,  181;  Wright  v.   Chandler,  Shordike,  4  Burr.  2092. 
Vol.  I  — 49 


i  <  U  PLEADING    -VND    I'F.OCEDUliK. 

tious  entry,  the  trespasser  assaulted  the  plaintiff/  debauched  his 
servants,  uttered  a  slander,  or  was  guilty  of  a  libel,  or  com- 
mitted a  trespass  to  or  conversion  of  personal  property ,2  the  whole 
wrong  may  be  embraced  in  the  same  complaint  and  made  parts 
of  one  cause  of  action,  of  which  the  illegal  entry  is  the  vital 
and  paramount  fact — -essentially  the  ground  of  the  action, 
even  though  not  the  gravest  element  in  the  estimate  of  dam- 
ages.^ Under  the  code,  matters  of  aggravation,  as  well  as  of 
mitigation,  should  be  pleaded.* 

ISToT  NECESSARY  TO  ITEMIZE  DAMAGES  IN  PLEADING. —  It  is  Un- 
necessary, in  most  actions,  where  the  demand  is  unliquidated, 
and  sounds  wholly  in  damages,  and  where  there  is  but  a  single 
cause  of  action,  to  state  specifically  and  in  separate  amounts 
the  different  elements  or  items  which  go  to  make  up  the  sura, 
total  of  damages.  It  is  enough  to  claim  so  much,  in  gross,  as 
damages  for  the  wrong  done.*  As  a  general  rule,  it  is  not  nec- 
essary for  a  defendant  in  an  action  to  recover  possession  of  per- 
sonal property,  to  claim  special  damages  in  his  answer  to  entitle 
him  to  recover  them  for  the  taldng  and  detention  of  his  property 
from  him  by  the  plaintiff.^ 

Statutory  damages  must  be  specially  claimed  and  alleged. — 
Wherever  penal  damages  are  given  by  statute  to  the  party  in- 
jured, where  he  had  a  remedy  at  common  law,  if  he  claims  the 
statutory  damages,  he  should  do  so  by  a  reference  to  the  stat- 
ute.''   The  facts  must  be  averred  which  bring  the  case  witiiin 

1  Plumb  V.  Ives,  39  Conn.  120;  Johnson  v.  Gorham,  38  Conn.  513; 
Druse  v.  Wheeler,  22  Mich.  439.  Barnes  v.  Burt,  38  Conn.  541. 

2  Bracegu-dle  v.  Orford,  2  M.  &  S.  ■*Leavitt  v.  Cutler,  37  Wis.  46; 
77;  Adams  v.  Rivers,  11  Barb.  390;  Klopfer  v.  Bromme,  26  Wis.  372; 
Snively  v.  Fahnstock,  18  Mtl.  391;  McKyring  v.  BuU,  16  N.  Y.  297,  307; 
Bursonv.  Cox,  6  Baxter,  360;  Ogden  Huger  v.  Tibbits,  2  Abb.  N.  S.  97; 
V.  Gibbous,  5  N.  J.  L.  518;  Allison  Fink  v.  Justh,  14  Abb.  N.  S.  107.  But 
V.  Chandler,  11  Mich.  542;  McAfee  see  Allis  v.  Nanson,  41  Ind.  154. 

V.  Crofford,  13  How.  U.  S.  447;  U.  S.  5  Shepard  v.  Pratt,  16  Kan.  209. 

V.  Magoon,  3  McLean,  171;  Smith  v.  6  Woodiiiff  v.  Cook,  25  Barb.  505, 

Smith,  50  N.  H.  212.  ^Pahner  v.  York  Bank,  18  Me.  166; 

3  McAfee  V.  Crofford,  13  How.  U.  Bayard  v.  Smith,  17  Wend.  88; 
S.  447;  Howe  v.  Willson,  1  Denio,  Keiny  v.  Ingraham,  66  Barb.  250; 
181;  Taylor  v.  Wells,  2  Saund.  74,  Royse  v.  May,  93  Pa.  St.  454;  Chap- 
note;  Monts  V.  Witmer,  3  Gill  &  J.  man  v.  Emerick,  5  Cal.  239. 

118;  Welch  v.  Piercy,  7  Ired.  L.  3G5; 


assessme:nt  of  daxages.  771 

the  statute ;  but  if  the  case  stated  constitute  a  cause  of  action, 
of  that  form,  at  common  law,  and  is  established,  though  all 
the  elements  alleged  to  constitute  the  case  for  which  the  statute 
gives  penal  damages  are  not  proved,  single  damages,  or  those 
allowed  by  the  common  law,  may  be  recovered.^  The  claim  for 
damages  in  the  declaration,  in  such  cases,  may  be  the  same, 
whether  the  damages  recoverable  are  penal  or  single.  ^ 


Section  2. 

assessment  of  damages. 

Writ  of  inquiry —  WJien  damages  may  be  assessed  loitliout  a  jury —  What 
a  default  or  demurrer  admits  —  Defendant  may  offer  evidence —  Wliat 
he  may  show  for  reduction  of  damages  —  Not  allowed  to  disprove 
plaintiff's  cause  of  action  —  Jury  tam  quam — Verdict  on  plea  in 
abatement  —  When  new  jury  may  be  called  to  assess  damages  —  Cor- 
rection of  error  in  assessment. 

"Wrft  of  inquiry. —  By  the  common  law  practice,  the  assess- 
ment is  by  a  vnit  of  inquiry.  An  interlocutory  judgment  is 
first  entered  up  that  the  plaintiff  ought  to  recover  his  dam- 
ages; but,  because  the  court  know  not  what  damages  the 
plaintiff  hath  sustained,  therefore  the  sheriff  is  commanded 
that,  by  the  oaths  of  twelve  honest  and  lawful  men,  he  inquire 
into  said  damages,  and  return  such  inquisition  into  court.^  The 
writ  is  issued  accordingly^  directed  to  the  sheriff,  who,  in  the 
execution  of  it,  sits  as  judge,  and  tries,  by  a  jury,  what  dam- 
ages the  plaintiff  haih  really  sustained,  under  very  nearly  the 
same  rules  of  law  as  upon  a  trial  by  jury  at  nisij^riits.  When 
their  verdict  is  rendered,  the  sheriff  returns  the  inquisition,  and 
final  judgment  is  thereupon  entered,  that  the  plaintiff  recover 
the  damages  so  assessed.  Some  of  the  authorities  would  seem 
to  sustain  the  view  that  as  the  writ  of  inquiry  is  merely  an  in- 
quest of  office,  to  inform  the  conscience  of  the  court,  they  may, 

I  starkweather  v.  Quigley,  7  Hun,  Clark  v.  Field,  43  Mich.   342;  Swift 

26;  Dubois  v.  Beaver,  25  N.  Y.  123;  v.  Applebone,  23  j\Iich.  252. 
Spra^ie  v.   Irwin,  27  How.  Pr.  51;         SQarkv.  Field,  supra. 
Barnes  v.   Quigley,   59  N.   Y.   265;         3  Jacobs'  Law  Diet.  Judgment,  1. 


V72  PLEADING   AND   PKOCEDUKE. 

if  they  please,  tliemselves  assess  the  damages,  without  the  inter- 
vention of  the  writ.^ 

This  view  is  supported  by  the  authorities  generally,  so  far  as 
it  relates  to  actions  brought  for  a  sum  certain,  or  which  may  be 
made  certain  by  computation.^  It  is  at  the  option  of  the 
plaintiff  to  have  a  writ  of  inquiry  in  all  cases,  but  not  of  the 
defendant.  The  defendant,  having  suffered  default,  has  no 
election  in  the  case.^ 

"When  damages  may  be  assessed  without  a  jury. —  It  is 
the  constant  practice  of  the  court,  with  the  consent  of  the 
plaintiff,  to  assess  either  by  itself,  or  by  referring  it  to  a  master, 
prothonotary  or  the  clerk,  the  damages,  Avhen  they  may  be  as- 
certained by  computation, —  where  there  are  records  or  other 
indisputable  documents  which  determine  the  amount  —  as  a 
judgment,^  a  note  or  bill  of  exchange; *  and  where  the  damages 
on  protested  bills  of  exchange  are  fixed  by  the  lexfor%  these 
may  be  assessed  by  the  court.®  The  court  may  not  assess  the 
damages  where  the  obligation  is  payable  in  a  foreign  currency ;  ^ 
nor  where  the  interest  is  to  be  ascertained  by  the  law  of 
another  state  or  country.^ 

1  Bruce  v.  Rawlins,  3  Wils.  61.  3  Holdip  v.  Otway,  2  Saund.  107; 

2  Price  V.  Dearborn,  34  N.  H.  481;  Price  v.  Dearborn,  34  N.  H.  481; 
Renner  v.  Marshall,  1  Wheat.  215;  Blackmore  v.  Flemying,  7  T.  R.  446. 
TamiehiU  v.  Tliomas,  1  Blackf.  144;  ^  Harrington  v.  Witherow,  2 
Van  Vleet  v.  Adair,  1  Blackf.  346;  Blackf.  37. 

Begg  V.  Wliittier,  48  Me.  314;  Crom-  5  Andrews  v.  Blake,  1  H.  Bl,  529; 

mett  V.  Pearson,  18  Me.  344;  Black-  Rashleigh  v.  Salmon,  1  H.  Bl.  252; 

more  V.  Fleming,  7  T.  R.  446;  Flem-  Longman    v.    Fenn,    1   H.   Bl.   541; 

ing  V.  Nail,  1   Tex.  246;   Dicken  v.  Gould  v.  Hammersley,  4  Taunt.  148; 

Smith,  1  Litt.  209;  McLain  v.  Ruth-  Phipps  v.    Addison.  7  Blackf.  375; 

erford,  Hempst.  47;   Cartwright   v.  Randolph  v.  Parish,    9  Porter,   76; 

Roff,  1  Tex.  78;  McCoy  v.  Elder,  2  Cullam    v.    Casey,    9    Porter,    131; 

Blackf.  183;  Reed  v.  Bank  of  Ky.  1  Campion  v.  Crawshay,  6  Taunt.  356. 

T.  B.  Mon.   92;   Campion  v.  Craw-  ^Qii-ggi^y  y.  Ford,  3  How.  (Miss.) 

shay,    6    Taunt.    356;    Maunsell    v.  184.     A  note  on  which  damages  are 

Massareene,   5  T.  R.  87;    Arden  v.  assessed  must  be  produced,  or  its 

Cornell,  5  B.  &  Aid.  885;  May  hew  v.  absence  accounted  for.     Brandt  v. 

Thatcher,  6  Wheat.   129;  Rashleigh  Foster,  5  Iowa,  287. 

V.  Salmon,  1  H.  Bl.  252;  Andrews  v.  7  Lynch  v.  BaiT,  Sneed  (Ky.),  170; 

Blake,    1    H.   Bl.   529;    Graham    v.  Maunsell  v.  Massareene,  5  T.  R.  87. 

Bickham,  4  Dall.  148.  8  Peacock  v.  Banks,  Minor  (Ala.), 


ASSESSMENT   OF   DAMAGES. 


7Y3 


"What  a  default  or  demurrer  admits. —  A  default  only  ad- 
mits the  defendant's  liability  to  some  damages,  where  they 
depend  upon  facts  in  pais ;  and,  though  they  are  stated  in  a 
common  law  declaration,  they  are  not  admitted ;  the  damages 
must  be  proved  and  assessed  by  a  jury.^  "Where  damages  are 
assessed  after  a  demurrer  overruled,  there  is  a  like  confession  of 
the  action.2 


387;  Evans  v.  Irrin,  1  Port.  390; 
Pauling's  Adm'r  v.  Sartain,  4  J.  J. 
Marsh.  238;  Johnson  v.  Williams,  1 
J.  J.  Marsh.  489. 

1  Grace  v.  Park,  5  J.  J.  Marsh.  57; 
Goff  V.  Hawks,  5  J.  J.  Marsh.  341; 
Kennon  v.  McRae,  3  Stew.  &  Port. 
249;  Van  Vleet  v.  Adair,  1  Blackf. 
346;  Wood  v.  Morgan,  6  Barb.  507; 
Campbell  v.  Woolen,  5  Blackf.  80; 
Langdon  v.  BuUock,  8  Ind.  341; 
Hanrick  v.  Farmers'  Bank,  8  Port. 
539;  Logan  v.  Jennings,  4Rawle,  355. 

2  Havens  v.  Hartford,  etc.  R.  R. 
Co.  28  Conn.  69.  In  Lamphear  v. 
Buckingham,  33  Conn.  237,  Butler, 
J.,  said:  "Every  action  at  law  to 
redress  a  wrong  or  enforce  a  right, 
if  properly  instituted,  is  a  syllogism, 
of  which  the  major  premise  is  the 
proposition  of  law  involved,  and  the 
minor  premise  the  proposition  of 
fact,  and  the  judgment  the  conclu- 
sion. Blackstone  states  it  thus 
(Com.  vol.  3,  page  396):  'The  judg- 
ment, though  pronounced  or 
awarded  by  the  judges,  is  not  their 
determination  or  sentence,  but  the 
detennination  or  sentence  of  the 
law.  It  is  the  conclusion  that  nat- 
urally and  regulai-ly  follows  from 
the  premises  of  law  and  fact,  which 
stands  thus;  —  against  him  who  hath 
rode  over  my  corn,  I  may  recover 
damages  by  law;  but  A  hath  rode 
over  my  corn;  therefore,  I  shall  re- 
cover damages  against  A.'  Usually, 
the  major  premise  is  not  set  out  in 
the  declaration,  but  the  proposition 
claimed  is  implied  from  or  involved 


in  the  facts  stated.  The  plaintiff  in 
an  action  of  tort,  for  instance,  sum- 
mons the  defendant  to  answer,  for 
that  at  a  certain  time  and  place  he 
committed,  in  a  certain  manner,  a 
certain  wrong,  to  the  plaintiff's  dam- 
age, etc. ;  and  by  so  doing  impliedly 
claims  that  the  law  is  so  that  he  is 
entitled  on  those  facts  to  recover. 
To  this  syllogism  the  defendant 
must  answer  according  to  the  rules 
of  law.  If  he  expressly  admits  on. 
the  record  the  law  and  the  fact,  both 
premises,  he  consents  to  the  conclu- 
sion, the  judgment,  or,  as  it  is  tech- 
nically expressed,  'confesses  judg- 
ment.' If  he  declines  or  omits  to 
ajipear  pursuant  to  the  summons,  or 
appearing,  declines  or  omits  to 
answer  when  called  upon  to  do  so, 
he  impliedly  admits  both  proposi- 
tions or  premises  to  be  true  by  his 
default,  and  judgment  follows,  tech- 
nically, as  a  judgment  by  default, 
pursuant  to  a  necessary  rule  of  law, 
stated  broadly  by  Mr.  Taylor  (Evi. 
669)  thus:  'Whenever  a  material 
averment,  well  pleaded,  is  passed 
over  by  the  adverse  party  without 
denial,  whether  it  be  bj'  pleading  in 
confession  and  avoidance,  or  by 
traversing  some  other  matter,  or  by 
demurring  in  law,  or  by  suffering 
judgment  to  go  by  default,  it  is, 
thereby,  for  the  purpose  of  pleading, 
if  not  for  trial  before  the  jurj-,  con- 
clusively admitted.'  So  the  de- 
fendant may  traverse  or  expressly 
deny  the  facts  or  the  minor  premise, 
and  wiU  be  held  on  the  same  priiici- 


T74 


PLEADING    AND    PEOCEDURE. 


A  jury  may  assess  damages  conditionally  in  case  of  a  demurrer 
to  evidence,  or  they  may  be  discharged  without  maldug  the  assess- 
ment.    In  the  latter  case,  should  the  demurrer  be  overruled,  the 


pie  to  have  admitted  the  major; 
and,  if  the  minor  is  found  true, 
judgment  —  the  conclusion  —  is 
awarded  in  the  verdict.  And  so  he 
may  deny  the  major  premise,  the 
proposition  of  law  involved,  by  a  de- 
murrer, and  failing  thereby  to  deny, 
and  passing  over  the  facts,  if  well 
pleaded  and  sufficient  to  constitute 
a  premise,  he  defaults  as  to  them, 
and  thereby  and  by  the  same  rule  is 
holden  to  have  admitted  them ;  and 
if  the  issue  in  law  is  found,  final 
judgment  passes  for  the  plaintiff. 
The  facts,  if  well  pleaded  and  suffi- 
cient, are  admitted,  not  because  the 
demurrer  admits  them  expressly,  or 
by  force  of  any  office  it  performs, 
but  because  the  defendant  has  not 
denied,  and  has  defaulted  as  to 
them.  A  defendant,  therefore,  who 
demurs  to  a  declaration,  admits,  not 
by  his  demurrer,  but  his  omission  to 
deny  them,  all  the  material  well 
pleaded  facts  alleged  in  it;  and  when 
his  demurrer  is  overruled,  the  case 
is  in  the  same  condition  precisely 
that  it  would  have  been  if  he  had 
suffered  a  default  and  not  demurred. 
All  the  difference  between  the  two 
is,  that  in  one  case  he  denied  the 
major  premise  of  law,  and  it  has 
been  found  true;  and  the  minor  hav- 
ing been  admitted  by  a  failure  to 
deny,  both  are  to  be  holden  true;  in 
the  other,  he  denied  neither,  and, 
therefore,  both  are  to  be  holden  true, 
"The  condition  of  a  case  before 
the  court  after  a  demurrer  overruled, 
and  after  a  default,  being  precisely 
the  same,  and  the  effect  of  demur- 
ring or  defaulting  being  precisely 
the  same,  in  admitting  the  facts,  the 
question  as  to  both  is  ansv,'ered  by 
what  is  the  law  as  to  eitlier.     What 


then  is  the  effect  of  a  default?  What 
facts  does  it  admit?  It  has  been 
said  by  some  writers  and  judges 
that  it  admits  the  cause  of  action, 
and  by  others  a  cause  of  action 
naerely  Mr.  Roscoe  in  his  work  on 
evidence  states  the  proposition  bi-oad- 
ly  thus:  '  Suffering  a  judgment  by 
default  is  an  admission  on  the  record 
of  the  cause  of  action.'  The  true 
rule  is  that  it  admits  the  cause  of 
action  as  alleged  in  full,  or  to  some 
extent,  according  to  the  nature  of 
the  action.  As  it  admits  all  tlie 
material  facts  well  jjleaded,  if  a  dis- 
tinct, definite,  entire  cause  of  ac- 
tion is  set  forth,  which  entitles  the 
plaintiff  to  a  sum  certain  ivithout 
farther  inquiry,  it  admits  the  cause 
of  action  in  full  as  alleged.  If  by 
the  rules  of  law  further  inquiry  is 
to  be  had  to  ascertain  the  amount 
due,  or  the  extent  of  the  wrong 
done,  and  of  the  damage  to  be  re- 
covered, then  it  admits  the  cause  of 
action,  but  not  to  the  extent  alleged, 
and  subject  to  such  inquiry.  Thus, 
if  it  be  debt  on  a  bond  for  a  sum 
certain,  the  whole  is  admitted,  and 
no  further  inquiry  is  had;  and  so  if 
assumpsit  on  a  note  or  bill,  and  there 
are  no  indorsements  entered  on  it, 
and  the  defendant  does  not  move 
for  an  inquiry,  the  cause  of  action 
and  the  amount  claimed  are  admit- 
ted. The  note  must  be  produced, 
but  need  not  be  proved.  Greene  v. 
Hearne,  3  T.  R.  301;  Roscoe  Ev. 
10th  ed.  71.  But  in  actions  of  tort, 
for  unliquidated  damages,  a  different 
rule  is  necessarily  applied.  In  such 
actions,  the  plaintiff  does  not  de- 
clare for  a  specific  thing,  but  has  an 
unlimited  license  in  declaring,  and 
may  allege  as  much  of  wrong  and 


ASSESSMENT   OF   DAMAGES. 


Y75 


damages  may  be  assessed  by  another  jmy  on  a  writ  of  inquiry.' 
A  confession  of  judgment,  but  for  no  certain  sum,  in  an  action 
sounding  in  damages,  is  not  sufficient  to  autliorize  tlie  court  to 
assess  the  damages ;  a  writ  of  inquiry  is  necessary.^  And  to 
warrant  the  assessment  of  damages  otherwise  than  by  jury,  the 
declaration  should  not  embrace  any  claim  requiring  a  jury. 
Where  the  common  counts  are  added  to  a  special  count,  on  a 
note  or  bill,  a  nolle  prosequi  should  be  entered  on  them  before 
assessment  of  damages  by  the  court.'  Though  the  action  be 
debt,  if  it  be  brought  on  an  account,  the  damages  must  be 
assessed  by  a  jury.*  A  demurrer  does  not  admit  items  of  ac- 
count, and  there  must,  in  such  a  case,  be  a  jury  to  assess  dam- 


injuiy,  and  demand  as  much  dam- 
age, as  lie  will,  and  recover  by  pi'ov- 
ing  any  amount,  however  small,  if 
sufficient  to  sustain  an  action.  A 
defendant,  therefore,  in  an  action  of 
tort  is  not  holden  to  have  admitted 
by  his  default  the  extent  of  the  in- 
jury. It  is  assumed  that,  as  the 
plaintiff  may  allege  more  than  is 
true,  he  probably  has  done  so;  and 
the  defendant  by  his  default  is  con- 
sidered as  admitting  the  wrong  to 
some  extent,  leaving  that  extent  to 
be  inquired  into  to  enable  the  court 
to  fix  the  damages,  because  such  an 
inquiry  is  always  and  necessarily 
had  in  such  cases.  But  he  admits 
the  wrong,  and  consequent  right  of 
the  plaintiff  to  recover  to  some  ex- 
tent. By  our  practice,  this  inquuy 
is  not  by  writ  of  inquiry,  or  by  ref- 
erence, but  made  by  the  court  on  a 
hearing  in  damages.  On  that  hear- 
ing, it  results  from  the  very  nature 
of  the  inquiry,  that  any  evidence 
tending  to  belittle  or  mitigate  the 
injury  complained  of  and  admitted, 
and  any  evidence  tending  to  aggra- 
vate it,  )s  admissible.  If  in  proving 
tlie  extent  to  wliich  he  was  hx  fault, 
tlie  defendant  prove  that  he  was  not 
in  fault  at  all,  and  that  the  injury 
occurred  through   the  fault  of  the 


plaintiff,  the  plaintiff  cannot  com- 
plain. The  evidence  does  not  de- 
prive him  of  his  right  to  judgment; 
it  merely  shows  tliat,  a.s  he  is  not  in 
fact  entitled  to  any  damages,  he  can 
only  have  such  as  the  law  gives  him 
by  reason  of  the  admissions  on  the 
record." 

Where  a  jury  has  assessed  dam- 
ages by  the  true  measure  in  a  case 
where  the  court  may  assess  them, 
the  verdict  will  not  be  set  ^side. 
Newton  v.  Newbegin,  43  Me.  293. 

Damages  should  not  be  assessed  on 
one  count  before  the  issues  on  others 
are  disposed  of.  Ewing  v  Codding, 
5  Blackf.  433;  Fleming  v.  Langton, 
1  Strange,  532;  Duperoy  v.  Johnson, 
7  T.  R.  473;  McClure  v.  Hall,  19 
Wend.  25. 

iMcCreary  v.  Fike,  2  Blackf.  374; 
Andrews  v.  Hammond,  8  Blackf. 
540. 

2  Dunbar  v,  Lindenberger,  3  IMunf . 
169. 

3  Beard  v.  Van  Wickle,  3  Cow. 
335;  Starbuck  v.  Luzenby,  7  Blackf. 
268;  McFall  v.  Wilson,  6  Blackf. 
260;  Carter  v.  Spencer,  4  lud.  78; 
Burr  v.  Waterman,  2  Cow.  36,  n. ; 
AVood  v.  Lemon,  1  Blackf.  198. 

■i  Wilson  V.  Darwin,  1  Hill,  670. 


I  i' 


PLEADING    AND    PKOCEDUKE. 


ages.^  Nor  will  a  default,  in  an  action  for  assault  and  battery^ 
admit  any  of  the  stated  particulars ;  it  admits  the  assault  and 
battery  so  far  as  to  entitle  the  plaintiff  to  maintain  his  action; 
not,  however,  that  it  was  committed  at  the  time  or  with  the- 
circumstances  of  aggravation  stated  in  the  declaration.^ 

On  assessment  of  damages,  some  damages  must  be  found; 
the  jury  cannot  find  a  verdict  for  the  defendant.^ 

Defendant  may  offek  evidence;  what  he  may  prove  in 
EEDUCTioN  OF  DAMAGES. —  Tlic  defendant  is  entitled  to  appear^ 
cross-examine  the  plaintiff's  witnesses,  and  to  introduce  wit- 
nesses to  mitigate  damages.*  lie  may  show  the  whole  res 
gestcB,  though  it  may  establish  that  the  plaintiff  has  no  legal 
claim  to  any  damages ;  but  it  will  only  have  the  effect  to  reduce 


or  mitigate  damages.^ 


'  Darrah  v.  Steamboat,  15  Mo.  187. 

2  Baker  v.  Loomis,  5  Wend.  134; 
Havens  v.  Hartford,  etc.  R.  R.  Co. 
28  Conn.  69.  But  see  Hyde  v.  Mof- 
fatt,  16  Vt.  271. 

3  Jackson  v.  Rathbon,  3  Cow.  297; 
Hanks  v.  Evans,  Hardin,  45;  Frasier 
V.  Lomax,  1  Cr.  C.  C.  328;  Turner 
V.  Cfft-ter,  1  Head,  520. 

4  Chicago,  etc.  R.  R.  Co.  v.  Ward, 
16  111.  522;  Hightower  v.  Haw- 
thorne, Henipst.  42;  Town  of  S. 
Ottawa  V.  Foster,  20  111.  296;  Cox  v. 
Way,  3  Blackf.  143;  Ewing  v.  Cod- 
ding, 5  Blackf.  433;  Dennison  v. 
Mair,  14  East,  622;  Cairo,  etc.  R.  R. 
Co.  V.  Holbrook,  72  111.  419;  Thomp- 
son V.  Haislip,  14  Ark.  220;  MizeU  v. 
McDonald,  25  Ark.  38. 

5  Turner  v;  Carter,  1  Head,  520; 
Carey  v.  Day,  36  Conn.  152;  Dailey 
V.  N.  Y.  etc.  R.  R.  Co.  32  Conn.  356; 
Daniels  v.  Town  of  Saybrook,  34 
Conn.  377;  Lamphear  v.  Bucking- 
ham, 33  Conn.  237.  In  Havens  v. 
Hartford  &  New  Haven  R.  R.  Co. 
28  Conn.  69,  the  court  considered 
the  effect  of  a  demurrer  overruled 
on  the  assessment  of  damages,  and 
held  that  the  case  stood  with  refer- 


ence to  the  evidence  necessary  and 
admissible,  precisely  as  it  would 
have  stood  upon  default;  that  the 
admissions  of  the  demurrer  are  ap- 
plicable even  to  the  principal  wi-ong- 
ful  act  only  in  its  relation  to  the 
question  whether  there  is  a  cause  of 
action,  and  not  at  all  in  its  relation 
to  the  question  of  damages.  And 
as  to  the  scope  of  exonerating  evi- 
dence for  the  purpose  of  mitiga- 
tion, Ellsworth,  J.,  said:  "Nothing 
would  be  more  extraordinary'-  than, 
on  such  a  general  open  declaration 
as  this,  for  the  court  to  overlook  and 
reject  evidence  already  received, 
conducing  to  show  the  cause,  occa- 
sion or  extent  of  any  supposed  in- 
juries sued  for.  We  say  it  would 
be  an  extraordinary  spectacle  —  a 
court  overlooking  and  disregarding 
material  and  decisive  proof,  upon 
the  idea  that  a  demurrer  blinds  the 
eyes  of  the  judge  to  whatever  is 
beneficial  to  the  defendants.  Why, 
on  a  hearing  in  damages,  even,  that 
which  might  have  availed  as  a  com- 
plete defense,  had  it  been  so  pleaded^ 
may  be  brought  in  to  reduce  the 
damages.     As  the  payment  of    an. 


ASSESSIIEXT    OV    DAMAGES. 


m 


Not  allowed  to  disprov p:  plaintiff's  cause  of  action. —  It  is 
generally  held  that  on  the  assessment  of  damages,  after  a  de- 
fault, or  on  an  equivalent  state  of  the  record,  evidence  denying 
the  cause  of  action,  or  tendino:  to  show  that  no  rifj-ht  of  action 


account,  or  a  discharge  and  release, 
is  evidence  before  auditors  in  an  ac- 
tion of  account,  to  prove  there  is 
nothing  in  ai-rear.  In  the  case  of 
WiUiams  v.  Miner,  18  Conn.  464, 
this  court  held  that  evidence  tend- 
ing to  prove  the  truth  of  tlie  slan- 
derous words  might  be  admitted  to 
affect  the  question  of  damages,  al- 
though a  plea  in  bar  might  liave 
been  put  in.  In  this  case,  Ch.  J. 
Church  says:  '  We  are  not  satisfied 
that  a  defendant  should  be  deprived 
of  the  benefit  of  mitigating  circum- 
stances for  no  better  reason  than 
that  they  conduce  to  prove  the  truth 
of  the  charge.'  Tlie  same  general 
doctrine  is  held  in  Hyde  v.  Moffatt, 
16  Vt.  271.  Besides,  for  aught  that 
appears,  the  plaintiff  was  willi)ig 
that  all  this  evidence  should  come 
in.  He  certainly  did  not  object  to 
it  until  afterwards,  and  perhaps  the 
material  parts  of  it  came  from  his 
own  lips  in  his  testimony  in  chief  or 
on  his  cross-examination.  And  so, 
too,  he  need  not  have  gone  into  the 
transaction  at  all,  if  he  had  confi- 
dence in  the  consequences  of  the  de- 
murrer; and  we  think  he  would  not, 
but  would  have  remained  silent,  if 
he  had  not  believed  and  was  not  in- 
structed by  counsel,  that  the  burden 
of  proof  lay  on  him  if  he  expected 
to  recover  substantial  damages. 
And  certainly  whatever  the  plaint- 
iff might  att('my)t  to  i^rove  to  aggra- 
vate the  damages  he  sought  to  re- 
cover, the  defendant  may  meet  with 
counter-proof,  and  so  confine  him 
to  his  mere  nominal  damages. 

"  I  liave  already  said,   that    the 
most  correct  view  of  this  declaration 


is,  that  the  defendants  are  sued,  ^ 
common  carriers,  for  a  breach  of 
duty  in  not  carrying  the  plaintiff 
safely  and  carefulh"  to  Middleton. 
If  this  be  so,  if  negligence  and  omis- 
sion are  the  gist  of  the  action,  and 
aU  that  is  said  about  tlie  ticket  and 
the  scuffle  and  the  special  injuries 
svistained  by  the  plaintiff,  are  col- 
lateral to  the  issue,  and  need  not  be 
proved  to  enable  the  plaintiff  to  re- 
cover, then  they  are  not  admitted, 
any  of  them,  by  the  demvurrer,  and 
there  is  nothing  left  for  further  con- 
troversy between  the  parties. 

' '  Following  out  tliis  view  of  the 
declaration,  I  inquire,  what  are  we 
to  understand  as  admitted,  in  this 
case,  by  the  demurrer?  In  my 
judgment,  nothing  but  that  the  de- 
fendants were  common  carriers  on 
the  road  in  question,  and  received 
the  plaintiff  into  one  of  their  cars  to 
carry  him  with  care  and  safety  from 
New  Haven  to  Middleton,  and  have 
failed  to  do  as  it  agreed.  This  gives 
a  complete  cause  of  action.  Strike 
this  out  of  the  declaration,  and  it  is 
by  no  means  certain  that  there  is 
enough  left  to  enable  the  plaintiff  to 
recover;  but  with  this  in,  and  the 
rest  stricken  out,  there  is  enough 
left  for  a  good  cause  of  action.  The 
wrongful  acts  specified  go  only  to 
the  manner  and  special  consequences 
of  the  defendant's  default. 

' '  But,  if  we  are  wrong  in  our 
view,  if  the  action  is  founded  in 
misfeasance  rather  than  nonfea- 
sance, and  the  gist  of  the  action  is 
the  positive  acts  of  tlie  defendants* 
agents,  the  result  will  not  be  essen- 
tially different;  for  that  only  one  of 


778 


PLEADING    AND    PEOCEDUEE, 


exists,  is  inadmissible  in  mitigation  of  damages.^  In  an  action 
for  false  imprisonment,  it  is  not  admissible  to  show  that  the 
plaintiff  has  been  guilty  of  the  offense  charged  and  the  regu- 
larity of  the  proceedings  against  him.  The  default  admitted 
all  the  material  averments  properly  set  forth  in  the  declaration, 
and  of  course  the  false  imprisonment,  and  everything  essential 
to  establish  the  right  of  the  plaintiff  to  recover.  The  only  de- 
batable question  for  the  examination  or  consideration  of  the 
jury  is  the  amount  of  damages,  and  that  ought  to  be  examined 
and  decided  on  the  assumption  that  the  false  imprisonment  had 
been  committed  by  the  defendants.^    The  evidence  in  such  a^ 


these  acts  needs  to  be  proved  on  the 
general  issue  —  the  tearing  of  the 
plaintiff's  coat  —  the  putting  the 
hand  violently  upon  his  person  — 
the  raising  him  from  the  seat  —  or 
the  attempt  to  eject  him  from  tlie 
car;  each  would  sustain  the  action, 
even  in  that  point  of  view;  and 
therefore  only  one  is  proved  by  the 
verdict  or  demurrer,  and  not  even 
that  specifically.  May  not  the  de- 
fendants show,  on  the  hearing  in 
damages,  notwithstanding  the  de- 
murrer, that  the  plaintiff's  knee  was 
not  hurt  at  all?  or,  if  so,  that  it  was 
caused  by  his  attempt  to  assail  the 
conductor,  or  in  his  twistiug  his 
limb  under  the  seat  to  keep  from 
being  ejected  from  the  car,  or  in 
springing  over  the  seat  to  avoid  the 
conductor?  If  so,  and  the  injury  to 
the  knee  may  be  denied  and  dis- 
proved, the  manner  and  degree  in 
v/hich  it  is  claimed  to  have  been 
done  by  the  defendants  may  be  dis- 
proved; for  the  greater  includes  the 
less,  and  the  proof  of  the  manner 
may  well  show,  as  it  did  in  this  case, 
that  the  plaintiff  was  the  autlior 
of  this  particular  injury;  and  were 
it  true  that  the  defendants,  by  plea, 
could  have  set  up  such  misconduct 
of  the  plaintiff  in  bar  of  the  action, 
which  we  by  no  means  concede, 
still,  the  entire  proof  being  before 


the  court,  and  it  appearing  that 
there  had  been  no  negligence,  mis- 
conduct or  fault  of  the  defendants, 
it  would  be  strange  indeed  for  the 
court  to  adjudge  the  defendants  to 
pay  the  plaintiff  damages  brought 
ujion  liimself  by  his  unpai'donable 
contumacy  and  violence,  when  it  is 
not  found  that  the  particular  injury 
to  the  knee  was  caused  by  the  de- 
fendants' agents  at  all. 

"  Nor  does  it  follow,  from  the  de- 
murrer, that  the  character  of  the 
scufiie  in  the  car,  when  the  plaintiff 
set  the  rules  of  the  company  at  de- 
fiance, cannot  be  known  and  judged 
of  and  made  the  rule  of  right  be- 
tween the  parties.  It  cannot  be  so. 
The  demurrer  cannot  be  allowed  to 
clothe  the  acts  of  the  defendants' 
agents  (supposing  them  to  be  im- 
projier)  with  a  character  or  quality 
which  will  not  allow  of  a  full  exami- 
nation of  them  on  their  merits,  or 
which  viust  exonerate  the  plaintiff 
contrary  to  the  justice  of  the  case, 
and  contrary  to  what  would  have 
been  the  result  in  a  trial  on  the 
general  issue." 

iFroust  V.  Burton,  15  Mo.  619; 
Sweet  V.  McDaniels,  39  Vt.  272;  Gar- 
ardv.  Dollar,  4  Jones  L.  175;  Curiy 
V.  Wilson,  48  Ala.  638.  See  Mc- 
Kyriug  v.  Bull,  16  N.  Y.  297. 

2  Foster  v.  Smith,  10  Vf  end.  377. 


ASSESSMENT    OF    DAilAGES.  779 

case  would  not  be  admissible  under  the  general  issue,  in  justifi- 
cation, without  being  specially  pleaded,  unless  made  so  by  stat- 
ute ;  and  the  reasons  given  are  to  prevent  surprise  upon  the 
plaintiff  on  the  trial,  and  to  enable  him  to  meet  the  defendant 
upon  equal  terms  in  respect  to  the  evidence.^  These  reasons  are 
equally  strong  against  allowing  the  evidence  without  notice  m 
mitigation  of  damages,  besides  the  inconsistency  of  hearing 
evidence  in  contradiction  of  the  legal  effect  of  the  record,  and 
which  is  not  pertinent  to  any  issue  presented  by  it.  If  this 
practice  were  tolerated,  it  would  enable  defendants  to  have  sub- 
stantially the  benefit  of  a  justification  in  every  case  in  which 
evidence  could  be  procured  to  establish  it,  without  notice  to  the 
plaintiff  of  such  defense;  for  if  admissible,  and  the  justifica- 
tion should  be  proved,  the  least  effect  that  could  reasonably  be 
given  to  it  would  be  to  reduce  the  inquest  to  nominal  damages. 
This  would  be  the  standard  of  damages  in  all  cases  upon  such 
proof.-  When  an  action  is  brought  on  a  contract  set  out  in 
the  declaration,  and  there  is  a  default,  on  the  assessment  of 
damages,  no  evidence  which  goes  to  deny  the  existence  of  the 
contract,  or  tends  to  avoid  it,  is  competent ;  the  default  admits 
it  as  set  forth,  and  concludes  the  defendant  from  denying  it.' 

A  sheriff's  jury  was  not  uniformly  resorted  to,  at  common 
law,  or  by  the  Enghsh  practice,  for  the  assessment  of  damages 
upon  proof.  TVhen  it  was  anticipated  that  some  difficult  point 
of  law  would  arise  in  the  course  of  the  inquiry,  or  where  the 
facts  were  deemed  important,  the  inquiry  was  conducted  before 
the  chief  justice  or  a  judge  of  assize.*  So,  in  this  country  as  to 
the  manner  of  selecting  the  jury  and  conducting  the  inquiry, 
or  under  what  circumstances  a  referee  by  some  name  may  per- 
form the  same  office,  there  is  no  uniformity. 

JuKT  TAM  qua:si. —  "Where  there  are  several  defendants,  and 
one  suffers  default  and  the  others  plead,  the  same  jury  that  tries 
the  issue  will  assess  the  damages  on  the  default.     If  those  who 

lid.;  1  Chitty'sPl.  493.  l^am,   33   Conn.   248-250;    Curry  v, 

2  Foster  v.  Smith,  ubi  supra,  per     Wilson,  48  Ala.  638. 

Nelson,  Ch.  J.  ■*  1  SeHon's   Prac.  344;  Havens  v. 

3  Id. ;  East  India  Co.  v.  Glover,  1  Hartford,  etc.  R.  R.  Co.  38  Comi. 
Strange,  612;  Lamphearv.  Bucking-     90. 


TSO  PLEADING    AND    PKOCEDUEE. 

plead  succeed,  only  nominal  damages  can  be  assessed  against  the 
defaulting  defendant.^ 

On  the  determination  of  the  issue  on  a  plea  in  abatement  the 
judgment  is  peremptory,  and  the  same  jury  should  assess  dam- 
ages ;  ^  but  if  this  is  omitted,  they  may  be  subsequently  assessed 
as  upon  default  by  another  jury  or  the  court,  according  to  the 
nature  of  the  case.* 

"When  new  jury  mxy  be  called  to  assess  damages. —  It  Avas 
laid  down  in  an  early  case  in  ISTew  Jersey,  that  where  the  jury 
who  try  the  cause  omit  to  assess  the  damages,  in  case  the  mat- 
ter omitted  to  be  inquired  of  by  the  jury  is  such  as  goes  to  the 
very  point  of  the  issue,  and  constitutes  the  gist  of  the  action,  as 
in  assumpsit  and  trespass,  and  u]3on  which,  if  a  false  verdict  be 
found  by  the  jury,  an  attaint  will  lie  against  them ;  then  such 
matter  cannot  be  supplied  by  a  writ  of  inquiry;  for  there  the 
party  injured  may  lose  his  action  of  attaint,  which  will  not  lie 
upon  an  inquest  of  office.  But  where  the  matter  omitted  to  be 
inquired  of  by  the  principal  jury  does  not  go  to  the  point  in 
issue,  nor  constitute  the  gist  of  the  action,  but  is  collateral 
thereto,  such  matter  may  be  supplied  by  a  writ  of  inquiry. 
Therefore,  in  an  action  for  dower,  the  jury  not  having  assessed 
damages,  a  writ  of  inquiry  was  allowed.^ 

CoERECTioN  OF  ERROR  IN  ASSESSMENT. —  If  the  court  or  Tcfcree 
assessing  damages,  in  the  computation  of  the  amount,  have 
made  a  mistake  which  can  be  clearly  shown,  it  may  even  after 
judgment  be  corrected  by  the  court,  if  it  be  of  such  a  nature 
that  it  may  be  corrected  without  injustice  to  the  opposite  party. 
In  an  early  case  in  New  York,'^  there  was  a  mistake  m  the  as- 
sessment of  damages  by  computing  interest  for  one  year  less 
than  the  actual  time.  The  mistake  not  being  observed,  judg- 
ment was  perfected  and  collected ;  the  plaintiff  also  acknowl- 
edged satisfaction  of  the  judgment,  and  it  was  entered  of 
record.  When  the  mistake  was  shoAvn  to  the  court,  it  was  ad- 
judged that  tlie  proceedings  should  be  amended  subsequently  to 

1  State  V.  Rheinhardt,  31  Mo.  95;  ^Stalcope  v.  Copner,  3  N.  J.  L. 
Day  V.  Brawley,  1  Pa.  St.  429.  131. 

2  Eichorn  v.  Le'Maitre,  3  Wils.  367.         ■'  Mechanics'  Bank  v.  Menthorn,  19 
3Frye  v.  Hinckley,  18  Me.  320.  John.  244. 


TAYING   MONEY    INTO    COUKT.  781 

the  interlocutory  judgment,  unless  the  defendant  should  pay  the 
additional  interest  Avithin  thirty  days  after  service  of  the  rule. 
A  new  trial  may  be  granted  where  the  verdict  has  been  taken 
for  too  small  a  sum  in  consequence  of  the  plaintiff's  attorney 
inadvertently  computing  interest  for  too  short  a  time.^  And  the 
proper  mode  of  making  such  corrections,  as  for  excessive  inter- 
est, is  by  a  new  trial.  Where  a  verdict  was  taken  on  a  note 
and  the  jury  had  to  ascertain  simply  principal  and  interest,  and 
the  error  assigned  was  that  the  amount  found  exceeded  princi- 
pal and  interest,  it  was  held  that  as  the  jury  determined  the 
matter  on  evidence,  and  it  was  their  peculiar  province  to  assess 
damages,  neither  the  appellate  court,  nor  even  the  court  below, 
has  control  over  the  matter,  unless  by  awarding  a  new  trial. 
And  a  new  trial  cannot  be  awarded  by  the  appellate  court  for 
insufficiency  of  evidence.^ 

Sectioin'  3. 

PAYIXa  MONEY   INTO  COURT. 

Admits  the  cause  of  action  to  amount  paid  in  —  Is  a  payment  pro  tanto, 
and  cannot  he  taken  out  by  defendant  —  Payment  to  plaintiff  after  suit 
brought  may  be  proved  to  reduce  damages  —  Full  payment  received 
will  defeat  the  action, 

AD^klTTS    THE    CAUSE   OF    ACTION'   TO    AMOUNT    PAID    EST. Payment 

of  monej"  into  court  admits  the  cause  of  action  stated  in  the 
declaration  to  the  amount  paid  in,  but  nothing  more ;  and  beyond 
that  amount  the  defendant  may  make  his  defense.^  It  is  a  pay- 
ment p'ro  tanto}  The  plaintiif  has  a  right  to  take  it  out,  and 
the  defendant  has  not.^  The  subsequent  death  of  the  defendant, 
and  the  revival  of  the  action  against  his  administrator,  does  not 
change  the  effect  of  the  payment.® 

1  Winn  T.  Young,  1  J.  J.  Marsh.  51.  ^  Murray  v.  Bethune,  supra;  Goslin 

2  Baldwin  v.  Stebbins,  1  Ala.  180.  v.  Hodson,  24  Vt.  140. 

3  Spalding  V.  Vandercook,  2  Wend.  sid. ;  Reed  v.  Armstrong.  18  Ind. 
431;  Jolinston  v.  Columbian  Ins.  Co.  446;  Hopkins  v.  Stephenson,  1  J.  J. 
7  John.  315;  Murray  v.  Bethune,  1  Marsh.  341;  Morrow  v.  Smith,  4  B. 
Wend.    191;    Phelps     v.    To^vn,    14  Mon.  99. 

Mich.  394;  Hubbard  v.  Kuons,  7  6  Id. ;  Carey  v.  Choat,  6  U.  C.  Q.  B. 
Cush.  556.  O.  S.  467. 


7S2  PLEADING    ^JMD    PKOCEDUKS. 

Payments  to  plaintiff  after  suit  brought. —  Pajanents 
made  by  the  defendant  to  the  plaintiff,  after  suit  brought,  may 
be  proved  under  the  general  issue  to  reduce  damages.^  If  after 
suit  brought  the  defendant  pays  and  the  plaintiff  receives  the 
full  amount  of  the  claim  sued  for,  the  plaintiff  cannot  after- 
wards recover  judgment  for  nominal  damages,  so  as  to  recover 
costs.  Such  payment,  it  has  been  held,  may  be  proved  under 
the  general  issue  with  notice  of  the  payment,  and  that  a  special 
plea  to  the  further  maintenance  of  the  action  is  not  necessary .- 
"When  paid  into  court,  the  sum  paid  is  considered  as  stricken 
out  of  the  declaration ;  if  the  plaintiff  proves  no  larger  indebt- 
edness, the  defendant  is  entitled  to  the  verdict.^  But  if  the  jury 
find  that  a  larger  sum  was  due,  the  verdict  and  judgment 
should  be  for  the  whole  amount  of  the  plaintiff's  demand;^  and 
the  amount  paid  in  will  be  credited  on  the  execution. 

Section  4. 

evidence. 

Evidence  muf^t  he  adapted  to  damages  claimed  —  Burden  of  proof —  Intend- 
ments against  defendant  for  holding  back  evidence — Same  as  to 
plaintiff — Plaintiff  must  prove  pecuniary  items  —  When  opinions 
may  be  given  in  evidence  —  Upon  subjects  of  common  experience  and 
observation  — Instances  of  their  admission  and  rejection  —  Not  admis- 
sible as  to  amount  of  damages  —  Proof  of  values  —  Latitude  allowed 
to  prove  value  at  required  place  and  time  —  By  opinion  of  loitnesses  — 
By  actual  sales  —  By  elements  of  value  —  Proof  of  the  value  of  dogs  — 
Witnesses  giving  opinions  may  be  asked  their  grounds. 

Evidence  must  be  adapted  to  daimages  claimed. —  The 
proof  of  damages  must  vary  with  the  causes  for  which  they  are 
recoverable.  They  are,  however,  susceptible  of  one  general 
division,  marking  a  plain  distinction  in  respect  to  the  matter  of 
proof ;  that  is,  a  division  into  damages  which  are  fixed  by  rules 
of  law,  and  measureable  by  pecuniary  valuation;   and  those 

1  M^Millian  v.  Wallace,  3  Stew.  184.  But  see  Williams  v.  Tappan,  23 
185;  Williams  v.  Tappan,  23  N.  H.      N.  H.  385. 

385;    Britton  v.  Bisliop,  11  Vt.  70;         3  Bank  of  Columbia  v.  Sutherland, 
Dana  v.  Sessions,  40  N.  H.  509.  3  Cow.    336;  Dakin  v.    Dunning,  7 

2  Buell  V.  Flower,    39    Conn.    462;      Hill,  30. 

Bendet  v.  Amiesley,   37   How.   Pr.         ^  Dakin  v.  Dunning,    supra;  Ben- 
nett V.  Odom,  30  Ga.  940. 


% 


EV1UE>.-CE.  783 

recoverable  in  otlier  cases,  in  which  elements  of  damage  may 
be  considered  by  the  jury  without  pecuniary  estimate  of  the 
injury  in  evidence,  or  any  precise  legal  guide  for  determining 
the  amount.  Of  the  former  class  are  damages  for  breach  of 
contract,  other  than  promises  to  marry ;  and  for  torts  in.  respect 
to  property,  unaccompanied  by  aggravations  for  which  punitory 
damages  are  allowed.  Of  the  latter  class  are  all  damages  recov- 
erable for  bodily  pain  or  mental  suffering. 

The  inquiry  of  damages,  when  it  is  properly  entered  upon, 
whether  upon  trial  of  an  issue,  or  upon  mere  assessment,  pro- 
supposes  a  right  of  action  established,  except  where  actual  injury 
and  damage  are  the  gist  of  the  action.  In  either  case  a  specific 
cause  of  injury,  stated  in  the  declaration,  is  assumed;  and 
unless  it  can  be  legally  assumed,  the  inquiry  of  damages  is  j)re- 
matm^e.  On  trial,  the  plaintiff  is  entitled  to  that  assumption, 
when  he  has  introduced  proof  of  that  cause,  which  gives  him  a 
right  to  go  to  the  jury  upon  it ;  and  in  cases  of  default  or 
demurrer  overruled,  the  cause  stated  is  admitted,  by  failure  to 
deny  it  by  pleading.  If  that  assumption  or  admission  is  main- 
tained, the  law  declares,  except  in  the  cases  before  referred  to, 
where  actual  injury  is  the  gist  of  the  action,  that  the  plaintiff 
has  sustained  some  damage.  Whether  he  shall  have  more 
than  nominal  damages  depends  on  whether  the  case  stated  and 
proved  or  admitted,  includes  the  legal  measurement  of  his  dam- 
ages to  a  larger  amount ;  'or,  otherwise,  whether  the  required 
proof  to  show  them  has  been  introduced. 

In  the  nature  of  things,  therefore,  the  evidence  appropriate  to 
the  mere  question  of  damages  must  relate  to  and  tend  to  show 
the  extent  of  the  injury,  and  aid  the  jury  in  fixing  an  equivalent 
expression  in  money.  In  many  supposable  cases,  much  of  the 
learning  which  pertains  to  that  luxuriant  branch  of  the  law 
may  be  invoked  on  that  question,  but  it  is  not  practicable  or 
necessary  for  the  present  purpose  to  pm-sue  that  subject  into 
much  detail. 

Burden  of  proof. —  An  important  consideration  at  the  outset 
of  the  inquiry  of  damages,  and  at  every  step  in  its  progress,  is 
the  lurden  of  2>roof,  or  to  what  extent  the  plaintiff  has  made  a 
^rima  facie  showing.     If  his  action  is  upon  an  express  prom- 


TSi  PLEADING    AND    PEOCEDUKE. 

ise  to  pay  money,  the  establishment  of  his  cause  of  action  in- 
volves a  frima  facie  showing  of  the  amount  which  is  clue, 
according  to  the  purport  and  tenor  of ,  the  promise.  Matter  of 
discharge  or  reduction  must  be  shown  by  the  defendant.  A 
promise,  not  fulfilled,  of  something  else  which  is  definite  in 
quantity,  and  capable  of  valuation,  presents,  at  first,  only  the 
one  question  of  value  at  the  time  when  the  contract  should 
have  been  performed. 

InTENDJIENTS  against  DEFENDANT  FOR  HOLDING  BACK  EVIDENCE. — • 

"When  money  or  property  has  been  entrusted  by  the  plaintiff, 
or  has  otherwise  come  to  the  defendant,  under  such  circum- 
stances as  to  impose  on  him  the  duty  to  return  or  account  for 
it,  the  plaintiff  may  rest  on  proof  of  t*he  value  of  that  which 
would  naturally  and  directly  result  from  the  performance  of 
that  duty.  The  defendant's  refusal  or  omission  to  account  ac- 
cording to  his  duty,  or  to  make  disclosure,  necessary  on  account 
of  his  fault  or  his  superior  means  of  information,  will  subject 
him  to  the  consequences  of  having  all  doubts  resolved  on  the 
most  favorable  hypothesis  for  the  plaintiff,  within  his  proof.^ 
In  other  words,  the  law  will  make  every  reasonable  intendment 
against  him.-  Thus,  where  a  person  who  has  wrongfully  con- 
verted property  will  not  produce  it,  it  will  be  presumed  against 
him  to  be  of  the  best  description.* 

A  man  who  wilfully  places  the  property  of  others  in  a  situa- 
tion where  it  cannot  be  recovered,  or  its  true  amount  or  value 
ascertained ;  either  by  mixing  it  with  his  own,  or  in  any  other 
manner,  will  be  compelled  to  bear  all  the  inconveniences  of  the 
uncertainty  or  confusion  which  he  has  produced,  even  to  the 
extent  of  surrendering  the  whole,  if  the  parts  cannot  be  dis- 
criminated ;  or  responding  in  damages  for  the  highest  value  at 
which  the  property  can  be  reasonably  estimated.^ 

1  Askew  V.  Odenheimer,  1  Bald-  ^Armory  v.  Delamirie,  1  Str. 
win,  380;  Mortimer  v.  Cradock,  7  504;  1  Smith  Lead.  C.  584;  Curry  v. 
Jurist,  45;  Thompson  v.  Thompson,      Wilson,  48  Ala.  638. 

9    lud.    323;    Betts    v.    Jackson,    6  ^Note  to  Armory    v.    Delamirie; 

Wend.  180;  Gray  v.  Haig,  20  Beav.  1  Smith  Lead.  C.  589,  citing  Lupton 

219;  Jones  v.  Murphy,  8  Watts  &  S.  v.  White,  15  Ves.  432;  Hart  v.  Ten 

275,  301;  Arrott  v.  Brown,  6  Whart.  9;  Eyck,  2  John.  Ch.  62,  108.     See  Gil- 

McReynolds  V.  McCord,  6  Watts,  288.  bert  v.  Kennedy,  22  Mich.  117;  Alli- 

2  Preston  v.  Leighton,  6  Md.  88.  son  v.  Chandler,  11  Mich.  542. 


EVIDENCE.  1 85 

Same  as  to  plaintiff, —  If  goods  are  sold  without  any  ex- 
press stipulation  as  to  price,  if  the  vendor  refuse  to  give  any- 
express  evidence  of  their  value,  they  are  presumed  to  be  worth 
only  the  lowest  price  for  which  goods  of  that  description 
usually  sell ;  unless  the  vendee  himself  be  shown  to  have  sup- 
pressed the  means  of  ascertaining  the  truth ;  for  then  a  con- 
trary presumption  arises,  and  they  are  taken  to  be  of  the  very 
best  description.^  "Where  a  contractor  was  prevented  by  the  de 
fendant,  his  employer,  from  fulfilling  his  contract,  for  which  an 
entire  sum  was  to  be  paid,  and  the  cost  of  completing  the  con- 
tract could  not  be  shown,  the  contractor  was  held  entitled  to 
recover,  as  the  measure  of  damages,  the  contract  price.^ 

The  plaintiff  is  not  entitled  to  recover,  without  proof  of  dam- 
ages, solely  on  the  presumption,  contra  spoliatorem  ;  but,  by  its 
operation,  his  evidence  wiU  receive  more  favorable  considera- 
tion ;  and  he  may  have  the  right  to  resort  to  evidence  of  inferior 
grade.'' 

Plaintiff  must  prove  pecuniary  items  —  Opinions. —  The 
plaintiff  must  prove  pecuniary  elements  of  damage,  payments 
made,  liabilities  incurred,  or  any  other  pecuniary  losses  sus- 
tained ;  and  that  they  proceeded  as  effects  from  the  act  com- 
plained of.  The  plaintiff's  proof,  for  this  purpose,  must  often 
be  required  to  exhibit  pecuniary  loss  occasioned  by  the  defend- 
ant preventing  a  state  of  things,  which  the  plaintiff  had  con- 
tracted or  otherwise  prepared  for,  by  the  alleged  wrong  or 
breach  of  contract,  or  by  the  destruction  or  partial  change  of 
an  existing  state  of  things  which  the  plaintiff  had  a  right  to 
have  continue.  In  making  this  proof,  the  general  rule  in  re- 
spect to  witnesses  must  be  observed,  that  they  can  only  testify 
to  facts ;  except  that,  in  matters  of  science  and  skill,  or  as  to 
value,  witnesses  having  special  knowledge  may  give  their  opin- 
ions. The  exception,  in  other  words,  is  that  a  witness  may  be 
asked  his  opinion,  as  an  expert,  wlien  the  question  relates  to  a 

1  Smith's     Note     to     Armory     v.  ^  Askew  v.  Odenheimer,  1  Baldw. 

Delamirie,  supra;  Clunnes  v.  Perrey,  380;  Life,  etc.  Ins.  Co.  v.  Mechanics' 

1  Camp.  8  and  note.  Fire  Ine.  Co.  7  Wend.  31;  Harden  v. 

■i  Baldwin  v.  Bennett,  4  Cal.  392:  He,sketh,  4  H.  &  N.  175. 
Coffee  V.  Meiggs,  9  Cal.  363. 
Vol.  1  —  50 


Y86 


PLEADING    AND   PEOCEDUKE. 


deduction  from  facts  supposed,  or  from  facts  which  are  within 
his  knowledge ;  and  they  are  facts  peculiar  to  a  science,  art  or 
profession  in  which  he  has  special  training  or  knowledge  not 
common  to  the  world. 

OprNlONS  UP05f  SUBJECTS  OF  COMMON  EXPERIENCE  AND  OBSER- 
VATION.— In  some  cases,  a  witness  who  is  not  an  expert  is  al- 
lowed to  state  conclusions  as  to  a  fact  of  common  experience 
and  observation,  when  that  conclusion  is  arrived  at  by  the  ex- 
ercise of  judgment  in  view  of  a  multitude  of  minute  particulars 
which  cannot  be  adequately  described  to  a  jury.^ 

In  an  action  upon  a  building  contract,  a  mason  may  be  asked 
how  long,  in  liis  opinion,  it  would  take  to  dry  the  walls  of  a 
house,  so  as  to  render  it  safe  and  fit  for  human  habitation.^  A 
witness  properly  qualified  has  been  allowed  to  give  his  opinion 
to  aid  in  establishing  how  much  or  what  proportion  of  the  grain 
was  left  upon  the  straw  by  a  tenant,  after  threshing  buckwheat.^ 


1  Smith  V.  Gurgerty,  4  Barb.  614; 
Missouri,  etc.  R.  R.  Co.  v.  Richards, 
8  Kan.  101;  Alfonso  v.  U.  S.  2  Story, 
421;  Tibbetts  v.  Haskins,  16  Me.  283; 
Crouse  v.  Holman,  19  Ind.  30;  Ot- 
tawa University  v.  Parkinson,  14 
Kan.  159;  Lewis  v.  Trickey.  20 
Barb.  387;  Sowers  v.  Dukes,  8  Minn. 
23;  Thomas  v.  Mallinckrodt,  43  Mo. 
58;  Doane  v.  Gan-etson,  24  Iowa, 
351;  Dwight  v.  County  Commission- 
ers, 11  Cush.  201;  Rogers  v.  Acker- 
man,  22  Barb.  134;  Nellis  v.  McCarn, 
35  Barb.  115;  Harris  v.  Panama  R. 
R.  Co.  58  N.  Y.  660;  Kerr  v.  Mc- 
Guire,  28  N.  Y.  446;  Phillips  v. 
Terry,  5  Abb.  N.  S.  327;  Smith  v. 
Hill,  22  Barb.  656,  Barber  v.  Mer- 
riam.  11  Allen,  322;  Decker  v.  My- 
ers, 31  How.  Pr.  372;  Wetherbee  v. 
Bennett,  2  Allen,  428;  Canandaigua 
R.  R.  Co.  V.  PajTie,  16  Barb.  273; 
Priest  V.  Nichols,  116  Mass.  401; 
Vandine  v.  Burpee,  13  Met.  288; 
Brill  V.  Flagler,  23  Wend.  354;  Wliit- 
beck  V.  N.  Y.  C.  R.  R.  Co.  36  Barb. 
644;   Joy  v.  Hopkins,  5  Denio,  84; 


Sisson  V.  Cleveland,  etc.  R.  R.  Co. 
14  Mich.  489;  Whitman  v.  Boston, 
etc.  R.  R.  Co.  7  Allen,  313;  Simp- 
kins  V.  Low,  49  Barb.  382;  Brainard 
V.  Boston,  etc.  R.  R.  Co.  12  Gray. 
407;  Clark  v.  Baird,  5  Seld.  183;  Mc- 
Donald V.  Christie,  42  Barb.  36; 
White  V.  Hermann,  51  111.  243;  Ohio, 
etc.  R.  R.  Co.  V.  Irvin,  27  111.  178: 
Same  v.  Taylor,  27  111.  207;  La  Fay- 
ette, etc.  R.  R.  Co.  V.  Winslow,  66 
lU.  219;  McCollum  v.  Seward,  62 
N.  Y:  316. 

2  Smith  V.  Gurgerty,  4  Barb.  614. 

3  Harpending  v.  Shoemaker,  37 
Barb.  270.  In  this  case,  Johnson,  J. 
said:  "The  standard  works  upon 
the  law  of  evidence  do  not  furnish 
us  any  light  upon  this  question,  and 
the  reported  cases  do'  not  seem  to 
have  established  any  clear  and  well 
defined  rule  upon  the  subject  of  the 
admissibility  of  evidence  resting  in 
the  judgment  or  opinion  of  an  in- 
formed and  competent  witness,  in 
matters  of  common  experience  and 
observation,  having  little,   if  any, 


EVIDENCE. 


vsr 


There  is  a  growing  tendency  to  the  doctrine,  if  it  be  not 
abeady  estabhshed,  that  opinions  of  ordinary  witnesses  may  be 
given  upon  matters  of  which  they  have  personal  knowledge,  in 
all  cases  in  which,  from  the  very  nature  of  the  subject,  the  facts 


relation  to  questions  of  science  and 
skilled  experts.  Indeed,  the  cases 
appear  to  have  created  confusion 
and  uncertainty,  instead  of  estab- 
lishing order  and  certainty,  upon 
this  subject.  I  shall  cite  only  a  few 
of  thorn.  DeWitt  v.  Early,  17  N.  Y. 
340;  S.  C.  0  Seld.  371;  Clark  v. 
Baird,  id.  183;  Morehouse  v.  Math- 
ews, 2  Comst.  514:  People  v.  East- 
wood, 14  N.  Y.  562;  Roch.  &  Syr. 
R.  R.  Co.  T.  Budlong,  6  How.  Pr. 
467;  S.  C.  10  id.  289;  Cook  v.  Brock- 
way,  21  Barb.  331;  Nellis  v.  McCam, 
35  id.  115.  The  books  are  full  of 
cases  upon  this  subject;  but  enough 
have  been  cited  to  show  that  the 
rule  is  not  yet  fixed  upon  any  well 
defined  principle.     .     .     . 

'■Much  of  the  ditficulty,  I  think, 
upon  many  of  these  questions,  has 
arisen  from  not  discriminating  be- 
tween mere  opinion,  founded  and 
expressed  upon  some  h\-pothesis 
stated,  or  statement  of  facts  related 
by  another,  and  knowledge  of  a  wit- 
ness, which  is  in  part  opinion  or 
judgment,  and  in  part  observation 
and  experience,  in  regard  to  the 
very  matter  upon  which  he  is  called 
to  testify.  It  is  every  day's  experience 
in  the  trial  of  causes  at  the  circuit, 
that  witnesses  are  called  upon  to 
state  their  judgment,  or  opinion, 
upon  questions  of  value,  of  quantity, 
of  size,  of  distance,  of  time,  and  the 
like,  where  there  has  been  no  test 
applied  by  measurement  or  other- 
wise. And  this  species  of  evidence 
has  been  found  absolutely  necessaiy 
to  even  a  tolerable  administration  of 
justice.  Indeed,  to  refuse  it  would 
in   very   many  cases    operate    as  a 


complete  denial  of  justice.  A  brief 
reference  to  a  very  few  of  the  most 
common  cases  will  not  be  inappro- 
priate in  the  discussion  of  this  ques- 
tion. In  actions  of  trespass,  to 
recover  for  the  destruction  of  crops, 
partial  or  total,  by  animals  or  other- 
wise, witnesses  acquainted  with  the 
crop,  and  the  average  yield  of  such 
crops,  after  seeing  the  extent  of  the 
destruction,  are  allowed  to  state 
their  judgment,  or  opinion,  as  to  the 
quantity  of  grain  destroyed.  In  ac- 
tions of  tort,  for  taking  an  unmeas- 
ured quantity  of  grain,  or  an  un- 
measured portion,  from  a  quantity 
measured,  witnesses  who  had  seen 
the  grain  before,  and  the  portion,  if 
any,  left  aftei-Avards,  are  allowed  to 
give  their  opinion,  or  judgment,  as 
to  the  quantity  taken.  In  actions  of 
assault  and  battery,  where  the  in- 
strument is  not  produced,  witnesses 
Avho  saw  it  are  uniformly  allowed  to 
state  their  judgment,  or  opinion,  as 
to  the  length  and  size  of  it,  and  the 
distance  they  were,  at  the  time  of 
the  affray,  from  the  spot  where  it 
took  place,  the  time  when,  etc. 
Many  more  instances  might  be  men- 
tioned, equally  in  point,  in  which 
the  rule  would  scarcely  be  disputed 
by  any  one;  where  it  is  perfectlj- 
obvious  that  the  knowledge,  in  great 
part,  rests  on  the  judgment  or  opin- 
ion of  the  witness,  founded  upon  his 
observation.  It  is  his  conclusion  of 
fact,  from  what  he  saw  or  exi^eri- 
enced.  That  this  is  the  common  laic  of 
evidence  upon  trials,  and  must  have 
been  always,  will,  I  am  confident,  be 
confirmed  by  the  assent  of  all  judges 
and  lawyers  of  much  experience,  in 


i  GO 


PLEADING    -VXD   TEOCEDURE. 


disconnected  from  such  opinions  cannot  be  so  presented  to  a 
jury  as  to  enable  them  to  pass  upon  the  question  with  the 
requisite  knowledge.^ 

Instances  of  rejection  and  ADisnssiON  or  opinions. —  Ordinary 
witnesses  may  testify  whether  *a  person  is  intoxicated  or  sober.^ 


trials  at  nisi  prius.  A  question  of 
this  character,  precisely,  was  put  to 
the  same  witness  upon  the  trial  in 
this  case.  The  crop,  it  seems,  had 
been  injured  by  the  frost,  and  the 
witness  was  asked  what  proportion 
of  the  crop  had  been  destroyed  by 
the  frost.  He  answered  that,  in  his 
jvidgment,  one-half  had  been  thus 
destroyed.  The  question  was  ob- 
jected to,  but  the  answer  was  al- 
lowed. That  it  was  properly  allowed, 
can,  I  think,  admit  of  no  doubt. 
The  fact  could  scarcely  be  proved  to 
the  apprehension  of  the  jury  in  any 
other  way.  No  description  in  lan- 
guage could  have  brought  the  facts 
before  their  minds  in  such  a  manner 
as  would  enable  them  to  form  any 
intelligent  judgment  upon  it.  But 
the  question  rejected  was  precisely 
of  the  same  character.  It  sought  to 
ascertain  the  proportion  or  quantity 
of  the  grain  left  upon  the  sti-aw 
after  threshing.  How  could  this  be 
described  to  a  jury,  so  as  to  enable 
them  to  decide,  without  the  conclu- 
sion of  fact  of  the  witness,  founded 
upon  his  examination  ?  This  ques- 
tion was  not  framed  with  much 
skiU,  but  the  object  of  it  is  entirely 
apparent.  It  did  not  call  for  a  mere 
opinion,  but  for  the  knowledge  of 
the  witness,  of  an  existing  fact; 
knowledge  inferior  in  degree,  how- 
ever, to  that  which  is  absolute  and 
certain.  But  it  was  his  knowledge, 
nevertheless,  derived  partly  from 
observation  and  partly  from  opinion 
or  judgment.  And  this  knowledge 
must,  of  necessity,  have  existed  in 


the  mind  of  the  witness,  with  far 
greater  clearness  and  certainty  than 
it  could  have  been  communicated  to 
the  minds  of  the  jury  bj^  any  state- 
ment he  might  have  made  of  what 
he  saw  merely,  however  clear  and 
lucid  such  statement  might  have 
been.  If  witnesses  were  to  be  per- 
mitted to  state  to  a  juiy  those  facts 
onl}-,  of  which  they  have  absolute 
and  certain  knowledge,  not  only  the 
range  of  inquiry,  but  the  province 
of  remedial  justice  would  be  very 
materially  contracted." 

1  Parker  v.  Chambers,  24  Ga.  518 
Kearney  v.  Fan-ell,  28  Conn.  317 
Townseud  v.  Bonwill,  5  Harr.  474 
Lund  V.  Tyngsborough,  9  Cush.  36 
Detroit,  etc.  R.  R.  Co.  v.  Van  Stein- 
burg,  17  IMich.  99;  Norton  v.  Moore, 
3  Head,  480;  Curtis  v.  Chicago,  etc. 
R.  R.  Co.  18  Wis.  312;  Butler  v. 
MehrUng,  15  111.  488;  Harris  v. 
Panama  R.  R.  Co.  3  Bosw.  7;  Willis 
V.  Quimby,  31  N.  H.  485;  Eastman 
V.  Amoskeag  M.  Co.  44  N.  H.  143; 
Carrier  v.  Boston,  etc.  R.  R.  Co.  34 
N.  H.  498;  Hackett  v.  B.  C.  &  M.  R. 
R.  Co.  35  N.  H.  390;  State  v.  Avery, 
44  N.  H.  392;  Whittier  v.  Franklin, 
46  N.  H.  23;  State  v.  Shinborn,  46  N. 
H.  497;  Hardy  v.  BlerriU,  56  N.  H. 
227;  McKee  v.  Nelson,  4  Com.  355; 
Commonwealth  v.  Sturtevant,  117 
Mass.  122;  Benson  v.  McFadden,  50 
Ind.  431;  State  v.  Falwell,  14  Kan. 
105;  Underwood  v.  Waldron,  33 
Mich.  232;  Milw.  &  Miss.  R.  R.  Co. 
V.  Eble,  3  Pin.  (Wis.)  334. 

2  People  V.  Eastwood,  14  N.  1. 
562. 


ETIDEXCE. 


T89 


Upon  sucli  a  question  it  was  said  in  a  Xew  York  case :  "  A  child 
six  years  old  may  answer  whether  a  man  (whom  it  has  seen) 
was  drunk  or  sober ;  it  does  not  require  science  or  opinion  to 
answer  the  question,  but  observation  merely;  but  the  child 
could  not  probably  describe  the  conduct  of  a  man,  so  that,  from 
its  description,  others  could  decide  the  question.  "Whether  a 
pei-son  is  drunk  or  sober,  or  how  far  he  was  affected  by  intoxi- 
cation, is  better  determined  by  the  direct  answer  of  those  who 
have  seen  him,  than  by  their  description  of  his  conduct.  Many 
persons  cannot  describe  particulars ;  if  their  testimony  were  ex- 
cluded, great  ii^'ustice  would  frequently  ensue."  ^  The  opinions 
of  unprofessional  witnesses  may  be  received  on  the  question  of 
mental  imbecihty  or  insanity.^ 


1  Id.  See  Clark  v.  Baird,  9  N.  Y. 
196.  In  this  case,  Jolinson,  J,,  said: 
"  Evidence  of  opinion  is  also  recog- 
nized as  proper  on  the  same  ground 
of  necessity  in  cases  where  language 
is  not  adapted  to  convey  those  cir- 
cumstances, on  Avhich  the  judgment 
must  be  formed.  In  questions  of 
identity  of  persons  or  things,  lan- 
guage is  wholly  incapable  to  convey 
the  appearances  and  sensible  marks 
on  which  alone  an  intelligent  judg- 
ment can  be  formed.  So,  too,  in  i"e- 
spect  to  handwriting;  who  would 
undertake  to  describe  in  words  the 
ground  upon  which  he  recognizes 
his  own,  with  any  expectation,  by 
that  means,  of  enabling  another  per- 
son to  pronounce  upon  its  genuine- 
ness ?  In  these  cases,  the  opinion  of 
the  witness  is  received  because  there 
are  no  other  means  of  investigation 
adapted  to  the  inquiry."  Mayor, 
etc.  of  N.  Y.  V.  Pentz,  24  Wend.  675; 
Priest  V.  Nichols,  116  Mass.  401. 

2  De  Witt  V.  Barly,  17  N.  Y.  340; 
White  V.  Barley,  10  Mich.  155.  In 
Beaubien  v.  Cicotte,  12  Mich.  501, 
CampbeU,  J. ,  after  an  extended  re- 
view of  cases,  said:  "  Fi-om  the  best 
examination   which    it    has    been 


possible  for  us  to  make  of  the  Eng- 
lish practice,  we  are  satisfied  that  in 
all  of  the  courts,  civil  and  criminal, 
as  well  as  in  the  ecclesiastical  courts, 
the  practice  concerning  proof  of 
mental  condition  is  the  same,  and 
permits  aU  who  have  had  means  of 
observation  to  testify  concerning  the 
existence  and  measure  of  capacity 
with  reference  to  the  matter  in  con- 
troversy; while  it  does  not  permit 
those  who  do  not  testify  from  per- 
sonal observation  to  give  a  direct 
opinion  of  capacitj%  except  upon 
some  given  hypothesis.  In  every 
case,  the  witnesses  who  speak  from 
their  own  observation  are  expected 
to  describe,  as  weU  as  they  can, 
what  has  led  to  their  conclusions,  as 
weU  as  the  means  of  observation. 
But  the  cases  referred  to  show  that, 
in  many  instances,  the  results  of 
very  limited  observation  have  been 
permitted;  —  the  safeguai'd  of  cross- 
examination  and  a  comparison  of 
testimony  being  deemed  sufficient 
to  prevent  any  mischief  from  the 
imperfect  knowledge  of  single  wit- 
nesses. 

■  •  In  the  United  States,   the  au- 
thorities all  require  the  witness  to 


'90 


TLEADING    iVND    PEOCEDUEE. 


state  such  facts  as  he  can,  in  order 
that  the  jury  may  he  better  enabled 
to  detei-mine  the  vahie  of  his  opin- 
ions;—  stress  being,  of  course,  laid 
upon  his  opportunities  of  judging. 
In  many  cases,  the  facts  which  can  be 
described  will  be  very  significant  to 
a  jury,  while  there  are  many  facts 
susceptible  of  a  different  interpreta- 
tion, from  which  a  jury  could  obtain 
no  light  whatever  without  the 
aid  of  the  witnesses'  judgment.  The 
strongest  indications  of  mental 
weakness  or  aberration  often  exist  in 
expressions  and  appearances  incapa- 
ble of  reproduction,  even  by  an 
accomplished  mimic;  and  yet  de- 
cisive to  any  intelligent  eye-witness. 
The  great  body  of  decisions  in  the 
United  States  adopt  the  English 
practice,  and  open  the  door  to  all 
testimony  which  can  enlighten  the 
jury,  from  every  kind  of  witnesses. 
.  .  .  The  mere  fact  that  a  person 
is  a  physician  does  not  of  necessity 
qualify  him  to  speak  ex  cathedra  on 
this  subject,  esj^ecially  when  every 
one  can  assume  the  title  with  im- 
punity. Men  of  real  knowledge  can 
always  gain  a  respectable  hearing 
on  their  own  merits.  The  fact  that 
in  all  important  litigations  the  ex- 
perts are  found  arrayed  against 
each  other,  renders  it  necessary  for 
the  jury  to  determine  which  is 
right,  and  in  doing  this,  they  must 
fall  back  upon  their  own  knowledge 
of  human  nature.  Judge  Eedfield 
has  referred  to  this  difficulty  in  the 
chapter  on  Senile  Dementia;  Am. 
Law  Reg.  vol.  13,  458,  459.  See 
also  Taylor's  Med.  Juris.  890,  891, 
907,  and  Delafield  v.  Parish,  25  N. 
Y.  9.  And  where  the  witnesses 
speak  from  their  own  observation, 
the  questions  which  may  be  put  to 
one  may  be  also  properly  put  to  an- 
other." Hardy  v.  Merrill,  56  N.  H. 
237;  Hathaway  v.  Nat.  L.  Ins.  Co.  48 


Vt.  335.  It  was  held  in  a  late  ca.so 
in  Massachusetts,  that  whenever  the 
value  of  any  particular  kind  of 
I^roperty,  which  may  not  be  pre- 
sumed to  be  within  the  actual 
knowledge  of  all  juries,  is  in  issue, 
the  testimony  of  witnesses  ac- 
quainted witli  the  value  of  similar 
l^roperty  is  admissible,  although 
they  have  never  seen  the  very 
property  in  question.  Miller  v. 
Smith.  112  Mass.  475;  Beecher  v. 
Denniston,  13  Gray,  354;  Fitchbux'g 
R.  R.  Uo.  V.  Freeman,  12  Gray,  401; 
Brady  v.  Brady,  ?  Allen,  101;  Cor- 
nell V.  Dean,  105  Mass.  435;  Ijawton 
V,  Chase,  108  Mass.  238.  But  see 
Westlake  v.  St.  Lawrence  Ins.  Co. 
14  Barb.  206. 

In  a  petition  for  the  assessment  of 
damages,  caused  by  the  location  of  a 
railroad  upon  a  wharf  used  for  the 
wood  and  lumber  business,  and  the 
land  connected  therewith,  one  who 
has  been  engaged  in  the  lumber 
business  for  several  years,  on  a 
wharf  in  the  vicinity,  and  has  been 
for  several  years  connected  with 
railroads,  but  who  lias  no  particular 
means  of  knowledge  as  to  the  ef- 
fect of  constructing  railroads  over 
wharves  similar  to  that  in  question, 
is  not  therebj'  qualified  to  give 'an 
opinion  as  an  expert  as  to  the  effect 
of  the  location  or  the  value  of  that 
wharf  for  the  business  there  con- 
ducted. Boston,  etc.  R.  R.  Co.  v. 
Old  Colony,  etc.  R,  R.  Co.  3  Allen, 
142. 

In  an  action  against  a  railroad 
company  for  an  injury  sustained  to 
the  person  of  a  passenger  through 
the  neghgence  of  the  defendant's 
servants,  evidence  of  loss  sustained 
by  the  plaintiff  in  his  business  in 
consequence  of  the  injury  received, 
was  held  proper  to  aid  the  jury  in 
estimating  his  damages;  and  for  that 
purpose  the  nature  of  his  business. 


EVIDENCE. 


T91 


its  extent,  and  the  importance  of  his 
personal  supervision  in  conducting 
it,  niiglit  be  shown;  but  that  opinions 
as  to  the  amount  of  his  loss  were 
inadmissible.  The  jury  were  in- 
structed that  the  opinion  of  intelli- 
gent merchants  residing  in  the 
vicinity  of  the  plaintiff,  and  inti- 
mately acquainted  with  his  business, 
being  engaged  themselves  in  tlie 
same  line,  when  sustained  by  satis- 
factory reasons,  were  entitled  to 
great  weight  in  estimating  the  dam- 
ages. Exception  to  this  instruction 
being  taken.  Nelson,  C.  J.,  said: 
:'The  general  rule  is  admitted,  that 
witnesses  must  speak  as  to  facts,  and 
facts,  too,  within  their  own  knowl- 
edge. )pinions,  belief,  deduction 
from  facts,  and  such  like,  are  mat- 
ters which  belong  to  the  jury,  and 
by  which  they  arrive  at  their  verdict; 
when  the  examination  extends  to 
these,  and  the  judgment,  belief  and 
inference  of  the  witness  are  inquired 
into  as  matters  proper  for  the  con- 
sideration of  a  jury,  their  province 
is  in  a  measure  usurped;  the  judg- 
ment of  witnesses  is  substituted  for 
that  of  the  jury.  To  this  settled 
principle,  which  is  and  should  be 
steadily  and  rigidly  adhei'ed  to,  ex- 
ceptions have  been  made,  and  the 
material  question  before  us  is, 
whether  the  opinions  admitted  in 
this  case  fall  within  any  of  them. 
The  exception  in  general  terms,  and 
to  which  most  of  the  cases  may  be 
referred,  is  usually  stated  as  follows: 
that  on  questions  of  skill  and  judg- 
ment, men  of  science  and  experience 
are  allowed  to  give  their  opinions  in 
evidence.  These  are  admitted  for 
the  re  ison  that  the  witnesses  are 
supposed  to  possess  a  peculiar  knowl- 
edge and  understanding  of  the  sub- 
jects in  controversy  beyond  ordinary 
men,  of  wliich  the  jury  are  com- 
])osed;    subjects    with  which    they 


have  become  familiar  by  study,  and 
from  observation  and  experience  in 
the  course  of  their  particular  occu- 
pations. Folkes  V.  Chadd,  2  Doug. 
157,  is  a  leading  case  upon  this  sub- 
ject. That  was  an  action  of  trespass 
for  cutting  away  a  bank  that  had 
been  erected  to  prevent  the  sea  over- 
flowing certain  meadows.  The  de- 
fense was  that  it  contributed  to  fill 
up  and  choke  Wells'  Harbor.  Ex- 
perienced engineers  were  called  to 
prove  that  in  their  judgment  the 
bank  was  not  the  cause  of  the  mis- 
chief, and  that  the  cutting  it  away 
Avould  not  remove  it.  Tlie  evidence 
■was  objected  to  as  being  matter  of 
opinion,  that  could  not  be  the  founda- 
tion for  the  verdict  of  a  jury,  which 
should  be  built  upon  facts.  The 
court  thought  otherwise;  and  Lord 
Mansfield,  in  pronouncing  judgment, 
said  that  the  opinion  was  deduced 
from  facts  which  were  not  disputed. 
The  situation  of  banks,  the  course  of 
tides,  and  of  winds  and  the  shifting 
of  sands;  that  the  opinion  deduced 
from  all  these  facts  was,  that,  math- 
ematically sjjeaking,  the  bank  may 
contribute  to  the  mischief,  but  not 
sensibly;  the  witnesses  understood 
the  construction  of  harbors,  the 
causes  of  their  destruction,  and  how 
remedied.  He  instanced  actions  for 
unskillfully  navigating  ships,  where 
the  question  depends  upon  the  judg- 
ment of  those  who  understood  such 
matters. 

"Upon  the  same  ground  ship- 
builders are  examined  as  to  the  sea- 
worthiness of  ships  in  actions  on 
policies  of  insurance,  even  in  cases 
wdiere  they  were  not  present  at  the 
survey  (Peake,  N.  P.  C.  25);  and 
medical  men  as  to  the  cause  of  dis- 
ease, or  death,  in  order  to  connect 
them  with  particular  acts;  also  as 
to  the  sane  or  insane  state  of  the 
mind;  and  this,  althougli  the  pro- 


T92 


PLEADING   AND   PEOCEDUEE. 


f essioual  witnesses  found  their  opin- 
ions entii'ely  upon  the  facts,  circum- 
stances and  symptoms  as  proved  by 
others.  Russ.  &  Ry.  C.  C.  L.  456. 
So  persons  engaged  in  particular  de- 
partments of  trade  may  be  called 
upon  to  express  their  opinion  upon 
subjects  connected  with  it,  on  which 
their  experience  and  observation 
enable  them  to  speak  with  more  un- 
derstanding than  others.  In  Chap- 
man V.  Walton,  10  Bing.  57,  an  ac- 
tion against  a  broker  for  negligence 
in  effecting  policies  of  insurance, 
other  brokers  were  called  and  ex- 
amined as  experts,  the  question  in- 
volved being  one  of  skill  in  that 
branch  of  business.  2  Starkie's  R. 
258;  10  Barn.  &  Cress.  527;  Peake's 
N.  P.  C.  43.  Upon  the  like  ground, 
it  is  every  day's  practice  to  take  the 
opinion  of  witnesses  as  to  the  value 
of  property;  j)ersons  supposed  to  be 
conversant  with  the  article;  as  to 
the  value  of  lands,  cattle,  horses, 
produce,  etc.  These  cases  all  stand 
upon  the  general  ground  of  peculiar 
ekill  and  judgment  in  the  matters 
about  which  opinions  are  sought. 
See  17  Wend.  136. 

' '  Now,  recurring  to  the  case  under 
consideration,  and  testing  it  by  the 
foregoing  principles,  it  appears  to 
me  impossible  to  maintain  that  it 
falls  within  this  exception  to  the 
general  rule,  or  within  any  of  the 
cases  that  have  arisen  and  may  be 
regarded  as  illustrations  of  it. 
Where  men  of  science  or  skill  have 
been  allowed  to  express  their  opin- 
ion upon  a  given  or  admitted  state 
of  facts,  if  of  equal  standing  and  in- 
telligence, there  may  be  expected 
something  like  a  general  concur- 
rence. I  do  not  mean  that  the  re- 
sults woukl  always  follow  with 
mathematical  certainty;  but  deduc- 
tions from  the  facts  by  the  applica- 
tion   of    their    sviperior    skiU    and 


knowledge  in  the  matters,  is  suj  - 
posed,  by  law,  to  lead  to  a  degree  of 
certainty  that  may  be  rehed  on  — 
otherwise  the  rule  would  be  worth- 
less. In  the  case  before  us  no  such 
accuracy  is  attainable,  or  can  be 
predicted  from  the  facts  on  which 
the  opinions  are  expressed.  There 
may  be  a  tolerable  conjecture  of  the 
amount  of  damage,  and  merchants 
in  the  same  line  of  business  with 
the  plaintiff,  and  residing  in  bis 
vicinity,  might  carry  it  nearer  to 
the  truth  than  others;  but  their 
opinions  can  rise  no  higher  than 
mere  conjecture,  in  tlie  nature  of- 
the  case;  no  set  or  series  of  facts 
exist,  to  which  the  application  of 
their  peculiar  knowledge  would 
naturally  lead  to  anything  like 
mathematical  certainty.  What  do 
they  state  as  the  foundation  of  their 
opinions?  The  amount  of  business; 
the  ability  and  attention  of  the 
plaintiff;  the  business  season;  the 
comparative  inexperience  of  the 
partners;  the  money  pressure  in  the 
market,  and  the  like.  All  this  may 
be  very  proper  for  the  consideration 
of  the  jury,  and  entitled  to  such 
weight,  in  connection  with  all  the 
other  circumstances  of  the  case,  in 
the  estimate  of  the  loss  and  damage, 
as  they  may  think  it  deserves;  but 
surely  no  mercantile  knowledge  ap- 
plied to  them  can  lead  to  any  accu- 
rate or  safe  result  as  matter  of  opin- 
ion for  their  guide.  Assume  the 
whole  to  be  true,  and  loss  does  not 
follow  with  anything  like  the  exact- 
ness that  exists  in  matters  of  science 
and  skill  —  more  especially  to  any 
gh-en  amount.  Even  with  the  jury, 
the  damage  beyond  the  actual  ex- 
penses out,  can  at  best  rise  but  little 
above  conjecture;  it  is  so  in  every 
case  where  they  are  called  upon  to 
estimate  the  loss  of  the  plaintiff's 
time." 


EVIDENCE. 


793 


A  witness  cannot  be  permitted  to  express  an  opinion  which 
depends  upon  uncertain  facts  which  may  or  may  not  transpire, 
and  which  cannot  be  foreseen  and  foretold  as  the  result  of 
any  experience,  nor  stated  as  a  deduction  of  science  or  law.^ 

A  witness  cannot  be  asked  his  opinion  of  the  auKjunt  of  in- 
jury from  a  competitive  business  carried  on  in  violation  of  an 
agreement,^  nor  of  the  value  of  the  reversion  of  land  over  which 
a  railroad  has  been  located ;  for  it  depends  on  the  length  of  time 
that  the  easement  of  the  road  will  continue,  and  in  relation  to 
that  there  has  been  no  experience  on  which  any  satisfactory 
opinion  can  be  based,^  For  the  same  reason  the  opinions  of 
witnesses  are  regarded  as  mere  conjectures  in  respect  to  the 
detriment  to  a  turnpike  from  a  near  railroad,  by  reason  of  its 
trains  frightening  horses  travehng  upon  such  turnpike;^  so,  as 
to  the  effect  of  building  a  railroad  on  the  good  will  of  a  mill ; ' 
or  the  effect  in  depreciating  the  value  of  a  stock  of  goods  by 
impairing  their  reputation  from  a  seizure  and  detention  of  them, 
on  an  attachment.®    To  ascertain  the  value  of  a  growing  crop 


iDanav.  Fiedler,  12  N.  Y.  40;  Nor- 
man V.  Wells,  17  Wend.  163. 

^Norman  v.  WeUs,  17  Wend.  136. 

3  Boston,  etc.  R.  R.  Co.  v.  Old 
Colony,  etc.  Corp.  3  Allen,  143.  See 
Perrine  v.  Hotchkiss,  58  Barb.  77. 

<Troy,  etc.  R.  R.  Co.  v.  N.  Turn- 
pike Co.  16  Barb.  100. 

sCauandaigua,  etc.  R.  R.  Co.  v. 
PajTie,  16  Barb.  273. 

6  Alexander  v.  Jacoby,  23  Ohio  St. 
358.  In  this  case  a  witness  testified 
that  there  would,  by  the  mere  act  of 
seizure  and  levy  of  attachment,  be 
a  stigma  or  discredit  cast  on  them 
which  would  diminish  tlieir  market 
value  in  the  hands  of  the  owners,  to 
whom  they  were  returned,  from  five 
to  fifteen  per  cent.  He  added,  that 
it  arises  from  the  fact  that  the  com- 
munity would  expect  to  buy  the 
goods  lower  on  account  of  their  hav- 
ing been  seized  by  the  sheriff.  That 
it  depended  to  some  extent  on  the 
length  of  time  the  sheriff  held  them. 


and  the  extent  that  it  was  known  in 
the  community,  and  the  amount  of 
competition  ■which  existed  at  the 
time  in  that  busuiess  at  that  place, 
and  the  extent  of  the  interx'uption 
of  the  business.  Mc II value,  J.,  said; 
"We  think  .  .  .  that  the  ad- 
mission of  this  testimony  cannot  be 
justified.  .  .  .  The  testimony 
given  cannot  be  regarded  as  an 
opinion  as  to  the  market  value  of 
the  goods  discharged  from  the  at- 
tachment. No  reference  was  had  to 
knowledge  of  the  goods,  or  prices 
reahzed  on  sales,  or  prices  demanded 
or  offered  in  the  market.  The  opin- 
ion "^as  not  based  upon  a  knowledge 
of  any  fact,  nor  upon  the  assump- 
tion of  any  fact,  which  fairly  and 
reasonably  indicates  the  amount  of 
loss  or  damage  resulting  from  the 
causes  named,  unless  it  be  the  very 
limited  experience  of  the  witness  in 
relation  to  matters  of  that  sort. 
But  experience  in  such  matters  is 


70i  PLEADING    AND   PKOCEDUKE. 

damaged  by  an  overflow  of  water,  it  is  competent  to  ask  a  wit- 
ness, conversant  Avitli  the  growth  of  such  crops,  how  much,  in  his 
opinion,  a  given  field  would  produce  per  acre.^  An  exjjert  wit- 
ness' opinion  is  admissible  in  an  action  for  breach  of  a  covenant 
against  incumbrancers  to  prove  the  difference  in  value  occasioned, 
by  a  right  of  way.^  In  an  action  for  a  personal  injur^^,  a  phy- 
sician who  attended  the  plaintiff  after  he  had  been  in  the  care 
of  another  physician  for  two  weeks,  may  be  asked  and  testify 
what,  so  far  as  he  can  judge,  had  been  the  first  physician's  treat- 
ment, and  in  what  respects  it  differed  from  his  own;  what 
effect,  so  far  as  he  could  judge,  it  had  upon  the  plaintiff;  and 
whether  or  not  he  saw  any  evidence  that  the  plaintiff  had  been 
injured  by  such  treatment.'  A  competent  witness  may  give  his 
opinion  of  the  amount  of  work  a  mill  would  do  in  a  given  time 
to  assist  a  jury  in  determining  the  amount  of  damage  a  party 
sustained  by  the  failure  of  a  mill-wright  to  complete  its  con- 
struction within  the  agreed  time.^ 

Opinions  not  admissible  as  to  amount  of  damages. —  A  wit- 
ness is  not  allowed  to  give  his  opinion  of  the  amount  of  damages 
a  party  sustains  from  a  given  act  or  omission,  because  when  he 
does  so  he  includes  the  law  as  well  as  the  fact.  It  is  the  province 
of  the  jury  to  assess  the  damages  according  to  the  rule  of  law, 
Avhicli  it  is  the  province  of  the  court  to  laj^  down  for  their  guid- 
ance ;  and  witnesses  are  allowed  only  to  furnish  the  data  from 
which  the  amount  is  arrived  at.^  And  where  the  injmy  consists 
of  distinct  elements,  it  is  not  competent  to  ask  a  witness  to  make  a 

not  witliin  the  exception  in  favor  of  i  Phillips  v.  Terry,  5  Abb.  N.  S. 

the  opinion  of  exi^erts.     There  is  no  327. 

skill  or  peculiar  knowledge  to  be  ac-  2  Wetherbee  v.   Bennett,  2  Allen, 

quired  by  persons  engaged  in  that  428. 

particular  line  of  trade,  or  any  other  ^  Barber  v.  Merriam,  11  iVllen,  322. 

trade,  whereby  a  better  opinion  may  *  Clifford    v.    Richardson,    18    Vt. 

be  given  in  relation  to  the  effect  of  620.                                        , 

the  causes  ref eiTcd  to.     Customers  ^  Van  Deusen  v.  Young,  29  N.  Y. 

would  be  quite  as  capable  as  trades-  9;   Morehouse  v.  Mathews,  2  N.  Y. 

men  to  form  an  opinion  in  relation  514;   Hargor  v.    Edmonds,  4  Barb. 

thereto.     Indeed,  the  only  end  ac-  256;   Giles  v.   O'Toole,  4  Barb.  261; 

complished  by  the  admission  of  such  Clark  v.  Baird,  9  N.  Y.  183:  Rodgers 

testimony,    is    the    svibstitution    of  v.  Fletcher,  13  Abb.  299;  Doolittle  v. 

witnesses  for   jiirors,   and  theories  EddJ^  7  Barb.  74;  Atlantic  &  G.  W. 

for  facts."  R.   R.  Co.  v.  Campbell,  4  Ohio  St. 


EVIDENCE.  795 

general  estimate,  but  he  should  be  asked  to  estimate  the  specific 
items  separately.^  But  where  unhquidated  damages  result  from 
an  injury,  complicated  in  its  circumstances,  and  difficult  of  de- 
scription, a  witness  acquainted  personally  with  all  the  facts  may 
be  permitted  to  give  his  opinion  of  the  total  or  aggregate  loss 
or  value,  as  some  evidence  of  the  fact.^ 

Peoof  of  value. —  Proof  of  value  is  important  in  a  great 
majority  of  cases.  If  the  value  in  question  is  general,  and  there 
is  a  market  value,  the  latter  governs.^  The  proof  of  it  is  not 
altogether  by  opinions ;  it  is  capable  of  proof  as  a  fact,  in  many 
cases.  Many  staple  commodities  and  articles  of  merchandise 
are  very  definitely  classified,  and  a  multitude  of  transactions  fix 
a  standard  of  values  every  day,  which  are  the  prices  paid  and 
received  for  them.  When  the  value  of  such  property  is  in  ques- 
tion, a  Vidtness  must  exercise  judgment  and  give  his  opinion  as 
to  the  class  to  which  the  property  belongs ;  but  the  current  or 
market  price  of  that  class,  at  a  given  time  and  place,  is  matter 
of  fact.  A  witness  who  can,  by  his  special  knowledge,  classify 
the  property,  and  who  is  also  acquainted  with  the  current  mar- 
ket price,  may  be  asked  in  a  single  question  what  in  his  opinion 
is  its  market  value ;  or  he  may  testify  alone  to  the  market  value, 
or  alone  to  its  quality,  and  how  it  should  be  classified.-*    In  such 

583;  Cleveland,  etc.  R.  R.  Co.  v.  Ball,  2  white  Deer  Creek  Improvement 

5  Ohio  St.  568;  Richardson  v.  North-  Co.  v.  Sassaman,  67  Pa.  St.  415. 

rup,    66    Barb.    85;     Thompson    v.  3  Dana  v.    Fiedler,    12   N.    Y.    40; 

Dickhart,   66    Barb.    604;   Green  v.  Graham  v.  Maitland,  6  Abb.  N.  S. 

Plank,  48  N.  Y.  669;  Whitmore  v.  307.  Berry  v.   Dwinell,  44  Me.  255; 

Bowman,  4  G.  Greene,  148;  Norman  Mailer  v.    Eno,   14  N.  Y.  597;  Mc- 

v.    WeEs,    17  Wend.    136;    Fish  v.  Carty  v.  Quimby,  12Kan.  494;  Smith 

Dodge,  4  Denio,  311;  Doff  V.Lyon,  1  v.    Griffith,    3    Hill,   333;    Pfeil   v. 

E.  D.  Smith,  536;  Evansville,  etc.  R.  Kemper,  3  Wis.  315. 

R.   Co.  V.   Fitzpatrick,  10  Ind.  120;  4  Washington  Ice  Co.  v.  Webster, 

Armstrong  v.   Smith,  44  Barb.  120;  68  Me.  449;  Whitbeck  v.  The  N.  Y. 

Simons  v,  Monier,  29  Barb.  419;  Gil-  C.  R.  R.  Co.  36  Barb.  644;  Miller  v. 

bert  V.   Cheriy,  57  Ga.  128;   Mont-  Smith,    112  Mass.    470;   Beecher  v. 

gomery,  etc.  R.  R.  Co.  v.  Varner,  19  Denniston,  13  Gray,  354;  McCollum 

Ala.   185;  Stein  v.  Barden,  24  Ala.  v.  Seward,  62  N.  Y.  316;  Mercer  v. 

130;  Decker  v.  Myers,  31  How.  Pr.  Vose,  67  N.  Y.  56;  Browne  v.  Moore, 

373.  32  Mich.  254;  Shepherd  v.  Willis,  19 

r Dougherty  v.  Stewart,  43  Iowa,  Ohio,  142;  Todd  v.  Warner,  48  How. 

648.  Pr.  334. 


79G 


PLEADING    AND    rKOCEDUEE. 


cases  the  market  price  is  so  precise  that  witnesses  may  be  al- 
lowed to  give  their  opinion  of  the  value  of  an  article  described, 
though  not  seen.  And  so  in  any  case  when  the  subject  to  be 
valued  can  be  stated  hypothetically.^  A  witness  may  testify 
to  market  prices  from  hearsay,  for  in  the  nature  of  things  a 
knowledge  of  them  must  be  so  gained.  ^ 

"Where  the  question  is,  what  was  the  value  at  a  particular 
place,  and  there  was  no  market  value  there,  proof  may  be  given 
of  the  market  value  at  other  places,  with  the  cost  of  transporta- 
tion, or  other  facts  which  will  enable  the  jury  to  deduce  the 
value  at  the  place  in  question.'  Evidence  of  the  value  at  other 
places  than  the  place  in  question  is  inadmissible  where  the  evi- 
dence is  clear  that  there  is  a  value  at  that  place.*  But  to 
exclude  evidence  of  the  price  elsewhere,  it  should  appear  that 
like  property  had  been  bought  and  sold  at  the  place  in  question, 
in  the  way  of  trade,  in  sufficient  quantity,  or  often  enough,  to 
show  a  market  value.^  To  some  extent,  the  proof  of  values  at 
other  places  is  ^vithin  the  discretion  of  the  court,^  though  the 


1  Id.  See  Toledo,  etc.  R.  R.  Co.  v. 
Smith,  25  Ind.  288. 

2  Whitney  v.  Thacher,  117  Mass. 
523;  Whelan  v.  Lynch,  60  N.  Y.  469; 
Lash  V.  Druse,  4  Wend.  313;  Stone 
V.  Covell,  29  Mich.  359;  Chquot's 
Champagne,  3  Wall.  114;  Sisson  v. 
Cleveland,  etc.  R.  R.  Co.  14  Mich. 
489;  Cleveland,  etc.  R.  R.  Co.  v.  Per- 
kins, 17  Mich.  296;  Savercool  v.  Far- 
well,  17  Mich,  308;  1  Whart.  on  Ev. 
§  449;  Thatcher  v.  Kancher,  2  Colo. 
698. 

3  Harris  v.  Panama  R.  R.  Co.  58 
N.  Y.  680;  Wasliington  Ice  Co.  v. 
Webster,  68  Me.  449;  Berry  v. 
Dwinel,  44  Me.  255;  Hanson  v.  Law- 
Bon,  19  Kan.  201;  Young  v.  Lloyd, 
65  Pa.  St.  199;  Eaton  v.  Melius,  7 
Gray,  566;  Rice  v.  Manley,  66  N.  Y. 
82;  Wemplev.  Stewart,  22  Barb.  154; 
Sellar  v.  Clelland,  3  Colo.  532; 
Gregory  v.  McDowel,  8  Wend.  435; 
Dubois  V.  Glaub,  52  Pa.  St.  238; 
Williamson  v.  DiUon,  1  Har.  &  G. 


444;  Cleveland,  etc.  R.  R.  Co.  v. 
Perkins,  17  Mich.  296;  Marshall  v. 
N.  Y.  Cent.  R.  R.  Co.  45  Barb.  502; 
Savercool  v.  Farwell,  17  Mich.  308; 
Dufendorf  v.  Gage,  7  Barb.  18;  Kan- 
sas Stock  Yard  Co.  v.  Couch,  12 
Kan.  612;  Grand  Tower  Co.  v.  Phil- 
lips, 23  Wall.  471;  Coxe  v.  England, 
65  Pa.  St.  212;  Toledo,  etc.  R.  R.  Co. 
V.  Kickler,  51  lU.  157;  HiU  v.  Can- 
field,  56  Pa.  St.  454. 

■*  Gregory  v.  McDowel,  8  Wend. 
435;  Wemple  v.  Stewart,  22  Barb. 
154;  McCarty  v.  Quimby,  12  Kan. 
494;  Durst  v.  Burton,  47  N.  Y.  167. 

5  Harris  v.  Panama  R.  R.  Co.  58 
N.  Y.  660. 

6  Durst  V.  Burton,  supra.  Tills 
was  an  action  for  fraud  in  the  sale 
of  cheese,  which,  by  the  terms  of 
the  contract,  was  purchased  to  be 
forwarded  to,  and  sold  in,  New 
York.  After  the  plaintiffs  had 
proven  its  value  in  New  York,  the 
defendants    offered    to    prove    that 


EVIDENCE. 


797 


value  is  to  be  fixed  at  a  particular  time ;  yet,  where  the  dam- 
ages depend  upon  the  market  value  of  merchandise,  such,  for 
instance,  as  cotton,  the  law  contemplates  the  range  of  the  entire 
market,  and  the  average  of  prices  thus  found  running  through 
a  reasonable  period  of  time,^  so  that  sudden,  unnatural  and 
spasmodic  values,  not  indicating  the  real  state  of  the  market, 
may  not  prevail.-  Where  the  price  or  value,  at  the  time  in 
question,  cannot  be  directly  proved,  it  may  be  inferred  from 


cheese  was  shipped  and  sold  by 
l^laintiffs  in  the  London  market  at  a 
certain  price,  and  that  the  cheese 
market  in  New  York  was  regulated 
and  controlled  mainly  by  the  prices 
in  London  and  Liverpool.  The  trial 
court,  having  excluded  this  evi- 
dence, the  decision  was  affirmed. 
Church,  C.  J.,  said:  "Where  the 
evidence  is  clear  and  explicit  that 
there  is  a  ma.rket  at  the  place  of  de- 
livery, the  value  at  other  places  is 
not  strictly  competent.  8  Wend. 
435.  Nor  was  it  material  w^hether 
the  plaintiff  actually  realized  more 
or  less,  because  the  result  of  his  final 
disposition  of  it  might  be  produced 
by  contingencies  entirely  foreign  to 
the  principle  upon  which  the  rule 
rests.  The  only  possible  relevancy  of 
the  proposed  proof  was  its  legitimate 
bearing  upon  the  value  of  the  cheese 
in  New  York,  on  the  11th  day  of 
August;  and  a  majority  of  the  court 
think  it  was  properly  rejected  for 
the  reasons :  First,  that  there  was  ex- 
plicit proof  of  the  value  of  the 
cheese  in  New  York.  Second,  the 
evidence  offered  tended  not  to  prove 
the  value  at  that  time,  but  a  consid- 
erable period  afterwards.  Third, 
the  offer  should  have  negatived  any 
material  change  in  the  price  up  to 
the  time  of  the  sale  in  London,  and 
should  have  embraced  the  circum- 
stances, if  tliey  existed,  which,  pre- 
sumptively at  least,  would  repel  the 
idea  of  any  claim  for  reclama- 
tion." 


1  Graham  v.  Maitland,  6  Abb.  N, 
S.  337;  Smith  v.  Griffith,  3  Hill,  333. 

2  Durst  V,  Burton,  supra;  Kansas 
Stock  Yard  Co.  v.  Couch,  12  Kan. 
612;  Cronouse  v.  Fitch,  14  Abb.  346. 
See  Wilson  v.  Holden,  16  Abb.  133. 
In  Trout  v.  Kennedy,  47  Pa.  St.  3S7, 
the  court  held  it  not  erroneous  to 
instruct  the  jury  that  "it  is  not 
allowable  for  one  to  trespass  upon 
the  rights  of  another,  and  in  his  de- 
fense allege  that  there  was  no  mar- 
ket for  the  property  taken  or 
destroyed,  or  that  it  was  of  less 
value  on  this  account  than  it  had 
been  before,  or  was  subsequently." 
Tlie  language  must  be  taken  with 
the  context.  So  far  as  any  rule  for 
the  measurement  of  damages  was 
stated,  it  was  that  the  plaintiff  was 
entitled  to  the  just  and  full  value  of 
the  property."  If,  at  the  time  of  the 
trespass,  the  market  was  depressed, 
the  jury  were  told  that  too  much 
importance  was  not  to  be  given  to 
that  fact.  The  owner  might  have 
intended  to  keep  the  property  for  a 
better  market,  or  have  designed  it 
for  liis  own  use.  And  a  trespasser 
is  to  have  metod  out  to  him  in  dam- 
ages an  assessment  commensurate 
with  the  injury  he  has  done.  If,  at 
any  particular  time,  there  be  no 
market  demand  for  an  article,  it  is 
not,  of  course,  on  that  account,  of 
no  value.  What  a  thing  will  bring 
in  the  market  at  a  given  time  is, 
perhaps,  the  measure  of  its  value 
then,  but  it  is  not  the  only  one." 


79 S  PLEADING    AJ^D   PKOCEDUKE. 

circumstances;  and,  among  those  which  may  be  proved,  are 
sales  at  other  times  near  that  date,  especially  if  the  property  is 
such  as  bears  a  stable,  rather  than  a  fluctuating  price.^  AVhere 
the  property  to  be  valued  cannot  be  definitely  graded,  and. 
therefore,  is  not  susceptible  of  valuation  by  a  precise  market 
standard,  but  being  propert}?"  which  is  frequently  bought  and 
sold,  has.,  in  some  sort,  a  market  value,  there  is  more  scope  for 
testimony,  which  is  matter  of  opinion,  in  the  proof  of  value. 

Yalue  may  be  peoved  by  opinions  of  witnesses. —  It  is 
competent  to  prove  the  value  by  the  opinion  of  witnesses  who 
have  the  requisite  knowledge.  A  witness  who  swears  to  a 
knowledge  of  horses  from  having  kept  them  and  dealt  in  them 
for  a  number  of  years,  and  that  he  is  acquainted  with  the  horse 
in  question,  is  competent  to  give  an  opinion  of  his  value.-  So, 
one  acquainted  with  real  estate,  the  value  of  which  is  in  dis- 
pute, may  give  his  opinion  of  its  value.^  Any  person  knowing 
the  property  and  its  value  may  testify  on  that  question.  The 
witness  is  not  required  to  be,  or  to  have  been,  engaged  in  buy- 
ing and  selling  such  property.*  Every  one  is  supposed  to  have 
some  idea  of  the  value  of  such  property  as  is  in  general  use ; 
and  it  was  said  in  one  case,  it  is  not  necessary  to  have  been  a 
butcher  or  drover  to  prove  the  value  of  a  cow.'^ 

In  an  action  to  recover  compensation  for  services,  witnesses 
acquainted  with  the  value  of  such  services  in  the  vicinity  may 
give  their  opinion  of  their  value.^     The  value  of  services  requir- 

1  Wlaite  V.  Concord  R.  R.  Co.  30  7  Allen,  313;  Kellogg  v.  Ki-auser,  14 
N.  H.  188;  Beuham  v.  Dunbar,  103  S.  &  R.  137;  Snow  v,  Boston,  etc. 
Mass.  365;  A  bell  v.  Munson,  18  R.  R.  Co.  65  Me.  230;  Ohio,  etc.  R. 
Mich.  306;  Roberts  v.  Dunn,  71  111.  R.  Co.  v.  Taylor,  27  111.  207;  La  Fay- 
46;  Columbia  Bridge  Co.  v.  Geisse,  ette,  etc.  R.  R.  Co.  v.  Winslow,  66 
38  N.  J.  L.  39;  French  v.  Piper,  43  111.  219. 

N.  H.  439;  Waterson  v.  Seat,  10  Fla.  nVhite  v.  Hermann,  51  111.  243: 

326;    CampbeU    v    U.    S.   8    Ct.    of  Browne  v.  Moore,  32  Mich.  254. 

Claims,  240;  Cohen  v.'  Piatt,  69  N.  5  Ohio,  etc.  R.  R.  Co.  v.   Irvin,  27 

Y.  348.  m.  178;  BriU  v.  Flagler,  23  Wend. 

2  McDonald  v.  Christie,  42  Barb.  354;  Pennsylvania,  etc.  R.  R.  Co.  v. 
36;  Haskell  v  Mitchell,  53  Me.  468,  Bunnell,  81  Pa.  St.  414. 

Vandine  V.  Burpee,  13  Met.  288.  6  Lewis  v.  Trickey,  20  Barb.  387; 

3  Shaw  V.  Charlestown,  2  Gray,  Hough  v.  Cook,  69  111.  581;  Parker 
107;  Clark  v.  Baird,  9  N.  Y.  183;  v.  Parker,  33  Ala.  459;  KeudaU  v. 
Whitman  v.  Boston,  etc.  R.  R.  Co.  May,  10  Allen,  59. 


EVIDENCE.  70  f> 

ing  the  exercise  of  professional  or  artistic  skill  may  be  proved 
by  common  usage;  that  is,  Avhat  is  the  usual  or  customar}^  rate 
of  compensation.^  Attorneys  and  solicitors  are  entitled  to  have 
allowed  them  for  their  professional  services  what  they  reason- 
ably deserve  to  have  for  the  same,  having  due  reference  to  the 
nature  of  the  service,  and  their  standing  in  the  profession  for 
learning,  skill  and  proficiency ;  and,  for  the  purpose  of  aiding 
the  jury  in  determining  that  matter,  it  is  proper  to  receive  evi- 
dence as  to  the  price  usually  charged  and  received  for  similar 
services  by  other  persons  of  the  same  profession,  practicing  in 
the  same  court,'  and  the  opinions  of  those  in  the  same  profes- 
sion as  to  the  value.^  A  witness  who  is  an  attorney,  and  who 
knows  the  service  performed  by  another,  is  competent  to  testify 
as  to  its  value.  It  is  proper,  in  such  a  case,  to  take  into  con- 
sideration the  amount  in  controversy,  the  legal  questions  in- 
volved, and  the  general  importance  of  the  case.  But  wliat  one 
attorney  receives  is  no  criterion  of  the  value  of  the  services  of 
another  attorney  in  the  same  case,  in  the  absence  of  any  show- 
ing that  the  services  were  similar,  the  skill  equal,  and  the  time 
spent  the  same.* 

By  ACTUAL  SALES. —  Evideucc  of  actual  sales  of  other  similar 
property  to  that  in  question  may  be  shown.^  It  is  competent  to 
prove  the  value  of  other  like  property  by  whicli  tlie  property  in 
question  may  be  compared.^  It  was  held  in  an  Illinois  case,' 
in  an  action  to  recover  damages  for  the  breach  of  a  contract  to 
convey  land,  that  the  plaintiif,  in  order  to  show  the  value  of 
the  premises  in  controversy,  might  prove,  not  only  the  worth  of 
other  adjacent  property  at  or  near  the  date  of  such  contract, 
but  even  the  value  of  land  of  a  different  quahty,  lying  in  the 

iPfeil    V.    Kemper,    3    Wis.    315;  14    Kan.    159;    Same  v.   Welsh,    14 

Tibbetts  v.  Haskins,  16  Me.  283;  El-  Kan.  164. 

fett  V.  Smith,  1  Minn.  125.  &  Paine  v.    Boston,   4  Allen,   168; 

-'Stanton  V.  Embrey,  93  U.  S.  548;  Gilpin  v.   Consequa,   3  Wash.   184; 

Vilas  V.  Downer,  21  Vt.  419.  TiTiitt  v.  Baird,  12  Kan.  420. 

3  Williams  v.  Brown,  28  Ohio  St.  eBlanchard  v.  New  Jersey  S.  B. 

547;  Covey  v.  Campbell,  52  Ind.  157;  Co.  59  N.  Y.  292;  Simmons  v.  Car- 

Lamom-e  v.   Carol,    4    Denio,    370;  vill.  68  Mo.  416.     But  see  Gonge  v. 

Hart  V.  Vidal,  6  Cal.  56.  Roberts,  53  N.  Y.  619. 

*  Ottawa  University  v.  Parkinson,  ''  White  v.  Hermann,  51  lU.  243. 


SOO  PLEADING    AND    PKOCEDUEE. 

immediate  vicinity,  leaving  it  to  the  jmy  to  determine  the 
difference  in  value. 

And  the  market  value  of  a  marketable  commodity  may  be 
determined  by  offers  to  sell,  made  by  dealers  in  the  ordinary 
course  of  business,  as  well  as  by  actual  sales ;  and  the  statements 
of  dealers,  in  answer  to  inquiries  as  to  price,  are  competent 
evidence.^ 

By  ele^ients  or  value. —  In  an  action  by  the  assignee  against 
the  assignor,  of  a  claim  upon  the  United  States,  assigned  to  the 
plaintiff  in  payment  for  goods  sold  in  California,  just  before  its 
annexation  to  the  United  States,  and  which  the  plaintiff  has 
been  prevented,  by  the  defendant's  acts,  from  collecting,  evi- 
dence of  the  first  cost  of  the  goods  in  the  United  States,  the 
expenses  of  transporting  them  to  Cahfornia,  the  duties  there, 
and  the  usual  and  proper  addition  for  profits,  and  also  evidence 
of  sales  of  like  articles  for  cash  during  three  or  four  months  be- 
fore and  after  the  sale,  and  that  the  plaintiff  within  two  months 
afterwards  repurchased  some  of  the  same  goods  for  cash  at  ad- 
vanced rates,  was  held  admissible  in  connection  with  other  evi- 
dence of  the  market  value  of  the  goods  at  that  time  and  place.^ 
In  this  case  DeAvey,  J.,  said :  "  We  are  to  remember  that  these 
sales  were  made  in  California  in  1847,  where  the  state  of  things 
was  very  different  from  that  of  the  present  time,  and  when  the 
market  value  of  merchandise  could  not  be  settled  as  easily  and 
satisfactorily  as  it  could  be  in  ISTew  York  and  Boston.  Under 
the  circumstances  of  this  case,  we  think  the  verdict  should  not 
be  set  aside  on  account  of  the  admission  of  this  evidence.  It 
might  have  some  tendency  to  aid  in  settling  the  market  value 
of  such  property  at  that  distant  and  uncertain  market.  .  .  . 
Such  evidence  as  was  admitted,  in  the  present  case,  could  only 
be  used  in  aid  of  the  other  evidences  in  the  case,  or  resorted  to 
from  peculiar  circumstances,  as  in  a  case  where  no  market  value 
could  be  shown  directly.  It  might  be  of  very  httle  weight,  but 
we  do  not  think  that  the  verdict  should  be  set  aside  for  its 
admission." 

When  the  property  has  no  market  value,  proof  may  be  made 
of  such  facts  as  exist  tending  to  show  value  or  to  aid  the  jury 

1  Harrison  v.  Glover,  73  N.  Y.  451.         -  Eaton  v.  Melius,  7  Gray,  56G. 


EVIDENCE. 


801 


in  estimating  it.  The  cost  of  manufacturing  a  raw  article  for 
and  transporting  it  to  market  may  properly  be  inquired  into.^ 
When,  however,  it  appears  that  a  manufactured  article  has  an 
established  market  value,  evidence  as  to  the  cost  of  the  material 
and  of  the  manufacture  is  irrelevant  and  inadmissible.^  In  an 
action  for  the  conversion  of  forty  of  the  San  Francisco  W.  W. 
Co.'s  bonds,  of  $500  each,  claimed  by  plaintiff  to  have  been  pur- 
chased by  the  defendant  as  agent  for  him,  which  bonds  did  not 
express  in  what  kind  of  money  they  were  to  be  paid,  and  which 
were  purchased  by  defendant  with  his  own  funds  at  more  than 
their  face  in  currency ;  it  appeared  that  the  company  received 
gold  for  its  water  dues ;  that  gold  continued  in  use  in  Cahfornia 
during  the  period  involved,  and  that  payments  and  contracts 
were  made  in  and  on  the  basis  of  gold ;  that  bonds  of  this  issue 
were  not  bought  and  sold  in  the  market,  but  that  money  was 
borrowed  upon  them,  as  collateral,  at  par  in  gold.  Plaintiff 
offered  to  show  that  they  were  paid  in  gold ;  this  evidence  was 
rejected.  The  court  directed  a  verdict  for  nominal  damages, 
stating  in  substance  that  the  legal  tender  acts  substantially  held 
that  $100  in  greenbacks  are  worth  $100  in  gold.  Held  error; 
that  said  acts  did  not  affect  the  question  as  to  the  value  of 
chattels  in  an  action  for  their  conversion ;  nor  do  they  forbid  the 
recognition  of  the  difference  between  gold  and  currency  in  fix- 
ing the  damages  in  such  an  action ;  and  that  the  evidence  was 
sufficient  to  require  the  submission  of  that  question  to  a  jury.' 
AYitnesses  qualified  by  knowledge  may  testify  to  the  state  of 
the  market  with  reference  to  the  property  in  question,  the  large 
or  small  supply,  the  price  at  which  sales  were  made ;  and  these 
are  all  proper  subjects  for  the  consideration  of  the  jury.*  It  has 
been  held  that  where  there  have  been  no  actual  sales  of  an 
article,  a  witness  may  give  his  opinion  of  its  value.^    So  if  there 

1  Brizsee  v.  Maybee,  21  Wend.  144;  Erd  v.  Chicago,  etc.   R.   R.   Co.  41 

Masterton  v.  Mayor,  etc.  of  Brook-  Wis.  6j;  Wliitfield  v.  Whitfield,  40 

lyn,  7  Hill,  61.  Miss.  352;  Auson  v.  Dwight,  18  Iowa, 

2Althouse  V.  Alvord,  28  Wis.  577.  241;  Rogers  v.  Ackerman,  22  Barb. 

sSinipkins  v.  Low,  54  N.  Y.  179.  134;  Watsou  v.  Bauer,  4  Abb.  N.  S. 

4Wasliington  Ice  Co.  v.  Webster,  273;   Derby  v.  Gallup,  5   Miun.  119; 

<58  Me.  449.  Nellis  v.  McCarn,  35  Barb.  115;  Rob- 

5  Sinipkins  v.  Low    49  Barb.  382;  ertson  v.  Kiiapp,  35  N.  Y.  91. 
Vol.  1  —  51 


802  PLEADING   AND   PROCEDURE. 

is  no  near  market.^  Where  a  span  of  liorses  was  sold  with  a> 
warranty  that  they  were  all  right  for  a  livery  team,  and  it  ap- 
peared that  one  was  with  foal,  evidence  was  offered  in  respect 
to  the  difference  in  value  on  that  account ;  and  the  court  held 
that,  there  being  no  market  value,  a  witness  could  not  be  asked 
to  give  his  opinion  of  a  mare  in  that  condition  for  Mvery  pur- 
poses, and  her  value  if  not  in  that  concUtion,  and  then  give  his 
opinion  as  to  the  difference  in  value.^ 

Pkoof  of  the  value  of  dogs. —  In  ISTew  York  it  has  been 
held  that  in  an  action  to  recover  damages  for  killing  a  dog,  the 
opinions  of  witnesses  as  to  its  value  are  not  admissible  in  evi- 
dence." It  is  said  that  dogs  in  general  have  no  market  value, 
and  their  price  is  fanciful,  depending  on  the  taste  of  the 
owner ;  that  in  order  to  justify  opinions  as  to  their  value  they 
must  be  such  in  particular  as  have  a  market  value.*  But  in 
lUmois,  it  was  held  in  trespass  for  killing  a  dog,  that  it  could 
not  be  assumed  as  matter  of  law  that  dogs  have  no  commercial 
value ;  that  it  was  a  question  of  fact.  And  it  was  held  that  an 
instruction  was  wrong  that  the  jury  should  find  the  value  of 
the  dog  from  its  qualities,  rather  than  from  the  opinions  of  wit- 
nesses who  place  their  estimate  on  the  loss  of  services  of  the 
dog  for  a  given  time ;  the  jury  have  a  right  to  consider  both  in 
fixing  the  value  of  the  dog.^  In  determining  the  value  of  the 
property  in  question,  the  cost  or  contract  price  may  be  shown, 
as  well  as  what  it  sold  for  even  at  auction.^ 

"Witnesses  giving  opinions  may  be  asked  their  grounds. — 
A  witness  who  has  given  his  opinion  of  value,  or  upon  any 
other  matter  of  common  experience  and  observation,  may  be 
asked,  in  his  examination  in  chief,  and,  it  seems,  should  be 
asked,  to  state  the  grounds  of  his  opinion.'' 

1  Burger  v.  Northern  Pacific  R.  R.  ^  Spray  v.  Ammerman,  66  111.  309. 
Co.  23  Minn.  343.  « Luse  v.  Jones,  39  N.  J.   L.  707; 

2  Whitney  v.  Taylor,  54  Barb.  536.  Friuch  v.  Peper,  43  N.  H.  439;  Rob- 
SDunlap  v.  Synder,  17  Barb.  561.  erts  v.  Dunn,  71  111.  46;  Ford  v. 
4  Brown  v.  Hoburger,  52  Barb.  15.      Smith,  27AVis.  261. 

See  BriU  v.  Flagler,  23  Wend.  354;  -  Dickinson  v.  Fitchburg,  13  Gray, 

Cantling  v.  Hannibal,  etc.  R.  R.  Co.  546;  Hatton  v.  Board  of  Com.  55 
54  Mo.  385.  Ind.  194;  Tate  v.  Missouri,  etc.  R. 


VERDICT   AKD   JUDGMENT. 


803 


Section  5. 


VERDICT  A>'D  JUDGMENT. 

I 

'  Deliberations  of  the  jury  —  Recording  and  amending  verdicts — Excessive 
or  insufficient  verdicts — Verdicts  must  he  certain  —  General  verdict 
irliere  there  are  several  counts  —  Double  or  treble  damages  —  Judg- 
ment—  It  must  follow  the  verdict  —  It  must  be  certain. 

The  delibekations  op  the  jttey. —  So  far  as  the  amount  of 
( the  verdict  depends  upon  opinion,  the  jurors  are  to  determine 
\it  upon  their  own  judgment.     They  should  proceed  upon  the 
^     ^description  of  the  subject  as  they  find  it  from  the  testimony; 
^       ^and  they  should  avail  themselves  of  such  aid  as  is  afforded 
Uliem  in  the  opinions  of  witnesses  allowed  to  be  given  them. 
[  They  are  not  obliged,  hovv^ever,  to  yield  their  own  judgment, 
^  and  should  not,  to  conf onn  their  verdict  to  the  opinions  of  wit- 
\w'nesses.     Their  finding  may  be  more  or  less  in  amount  than 

that  stated  by  any  witness.^ 
^  They  will  not  vitiate  their  verdict  by  taking  an  arithmetical 

r  average  of  their  several  estimates,  as  an  experiment  to  ascer- 
^  tain  their  present  judgments,  or  as  a  basis  of  their  fui'ther  con- 
\sideration  of  the  case.^  But  it  would  be  a  ^^olat:ion  of  their 
T  duty  and  afford  cause  for  setting  aside  their  verdict,  if  they 


^ 


^R.  Co.  64  Mo.  149;  Cari^enter  v. 
Robinson,  1  Holmes,  67;  Jones  v. 
Merrimack  R.  L.  Co.  31  N.  H.  381; 
Clark  V.  State,  13  Ohio,  483;  Ma- 
honey  V.  Ashton,  4  Har.  &  McH.  63; 
Goodwyn  v.  Goodwyn,  20  Ga.  600; 
Dickinson  v.  Barber,  9  Mass.  225; 
Doe  V.  Reagan,  5  Blackf.  317;  Wil- 
son V.  McClean,  1  Cr.  C.  C.  465; 
Bank  of  Columbia  v.  McKenny,  3 
Cr.  C.  C.  361;  Gentry  v.  McJIinnis, 
3  Dana,  383;  Morse  v.  Crawford,  17 
Vt.  499;  Crawford  v.  Andrews,  6 
Ga.  244;  Roy  ale  v.  McKenzie,  25 
Ala.  363;  Sherman  v.  Blodgett,  28 
Vt.  149;  Riggins  v.  Brown,  12  Ga. 
271;  Dunliam's  App.  27  Conn.  193; 
Clioice  V.  State,  31  Ga.  424.  In 
New  Hampshire,  o^^inions  of  wit- 
nesses   are     not     received     as     to 


the  value  of  property.  Rochester  v. 
Chester,  3  N.  H.  349;  Peterborough 
v.  Jeffrey,  6  N.  H.  462;  Whipple  v. 
Walpole,  10  N.  H.  130;  Beard  v. 
Kirk,  11  N.  H.  397;  Hortt  v.  Moul- 
ton,  21  N.  H.  586. 

1  Brewer  v,  Tyringham,  13  Pick. 
547. 

2Deppe  V.  Chicago,  etc.  R.  R.  Co. 
38  Iowa,  593;  Barton  v.  Hohues,  16 
Iowa,  253;  St.  Louis,  etc.  R.  R.  Co, 
V.  Myrtle,  51  lud.  566;  Guard  v. 
Risk,  11  Ind.  156;  Kreider's  Estate, 
18  Pa.  St.  374;  White  v.  White,  5 
Rawle,  61;  Harvey  v.  Rickett,  15 
John.  87;  Grinnell  v.  Philhps,  1 
Mass.  530;  Dorn  v.  Fenno,  13  Pick. 
521;  Dunn  v.  Hall,  8  Blackf.  33; 
Pekin  v.  Winkel,  77  111.  56:  Hen- 
drickson  v.  Kingsbury,  31  Iowa,  379. 


804 


PLEADING   AND   PKOCEDUEE. 


agreed  before  taking  such  average  to  adopt  it  as  their  verdict, 
and  determined  the  amount  accordingly ;  ^  or  arrived  at  it  by 
any  game  or  process  of  chance.^  When  a  verdict  is  arrived  at 
by  such  means,  there  is  not  a  concurrence  of  views  by  that  in- 
telligent discussion,  and  consideration  of  the  merits  of  the  case, 
which  the  law  enjoins.  Every  verdict  should  be  the  result  of 
reflection,  and  not  the  effect  of  chance  or  lot.  Jurors  being 
sworn  to  determine  according  to  evidence,  suitors  have  a  right 
to  expect  that  they  will  examine  and  decide  upon  the  best  of 
theu"  ability  and  discernment.^ 

Whether  the  affidavits  of  jurors  may  be  read  to  show  that  a 
verdict  has  been  agreed  to  in  such  irregular  way,  is  not  settled. 
In  England  there  are  conflicting  decisions.''  In  this  country  they 
are  rejected,— not  in  all,  but  probably  in  a  majority  of  the 
states ;  ^  the  decisions  have  fluctuated  in  several  states,  and,  when. 


V 


lid.;  Illinois  Cen.  R.  R.  Co.  v. 
Able,  59  111.  IBl;  Parkham  v.  Har- 
ney, 6  S.  &  M.  55;  Smith  v.  Chatham, 
3  Caines,  57;  Boynton  v.  Trumbull, 
45  N.  H.  408;  Manix  v.  Malony,  7 
Iowa,  81;  Barton  v.  Holmes,  16 
Iowa,  252;  Thompson  v.  Perkins,  26 
Iowa,  486;  Deppe  v.  Chicago,  etc. 
R.  R.  Co.  38  Iowa,  592;  Thomas  v. 
Dickinson,  12  N.  Y.  364;  Harvey  v. 
Rickett,  15  John.  87;  Roberts  v. 
Failis,  1  Cow.  238;  St.  Martin  v. 
Desnoyer,  1  Minn.  156;  Forbes  v. 
Howard,  4  R.  I.  364;  Schanler  v. 
Porter,  7  Iowa,  482;  Ellege  v.  Todd, 
1  Humph.  43;  Wilson  v.  Berryman, 
5  Cal.  44. 

2  Mitchell  V.  Ehle,  10  Wend.  595; 
Ruble  V.  McDonald,  7  Iowa,  90; 
Thompson  v.  Perkins,  26  Iowa,  486; 
Donner  v.  Palmer,  23  Cal.  40;  Bir- 
chard  v.  Booth,  4  Wis.  67;  Mellish 
V.  Arnold,  Bunb.  51;  Hale  v.  Cove, 
1  Str.  642. 

3  Per  Livingston  in  Smith  v. 
Chatham,  supra. 

4  Phillips  V.  Fowler,  Barnes,  441; 
Mellish  V.  Arnold,  Bunb.  51;  Prior 
V.   Powers,   1  Keb.   811;    Vaiso   v. 


Delaval,  1  T.  R.  11;  Jackson  v.  Will- 
iamson, 2  T.  R.  281;  Rex  v.  Wood- 
fail,  5  Burr.  2661;  Aylett  v.  Jewel,  2 
W.  Bl.  1299;  Clark  v.  Stevenson,  2 
W.  Bl.  803;  Straker  v.  Graham,  4  M. 
&  W.  721;  Burgess  v.  Langley,  5  M. 
&  G.  722;  Addison  v.  Williamson,  5 
Jurist,  466;  Owen  v.  Warburton,  1 
B.  &  P.  N.  R.  326.  See  also,  as  to 
general  subject  of  admitting  or  re- 
jecting affidavits  of  jurors,  Milsom 
V.  Hayward,  9  Price,  134;  Hindle  v. 
Birch,  1  Moore,  455;  Metcalfe  v. 
Dean,  Cro.  El.  189;  Vicary  v.  Far- 
tliing,  Cro.  El.  411;  Heyler  v.  Hall, 
Palm.  325;  Harvey  v.  Hewitt,  8 
Dowl.  P.  C.  598;  Norman  v.  Bea- 
mont,  Willes,  484;  Cogan  v.  Ebden, 
1  Burr.  383;  Rex  v.  Simmons,  Say  re, 
34. 

5  Dana  v.  Tucker,  4  John.  487; 
Meade  v.  Smith,  16  Conn.  3-16;  State 
V.  Freeman,  5  Conn.  348;  AlUson  v. 
People,  45  111.  37;  State  v.  McLeod, 
1  Hawkes,  344;  O'Barr  v.  Alexander, 
37  Ga.  195;  Browuell  v.  McEwen,  5 
Denio,  367;  People  v.  Com.  Pleas,  1 
Wend.  297;  Knowlton  v.  McMahon, 
13  Minn.  386;  Cluggage  v.  Swan,  4 


VEKDICT    A2s'D   JUDGMENT.  805 

compared,  are  not  referable  to  any  consistent  principles,^  In 
Iowa,  after  some  fluctuation,  the  court  lay  down  this  as  the  true 
rule :  "  that  affidavits  of  jurors  may  be  received  for  the  purpose 
of  avoiding  a  verdict  to  show  any  matter  occm-ring  during  the 
trial,  or  in  the  jury  room,  which  does  not  essentially  inhere  in 
the  verdict ;  as  that  a  juror  was  improperly  approached  by  a  party, 
his  agent  or  attorney ;  that  witnesses  or  others  conversed  as  to  the 
facts  or  raerits  of  the  cause,  out  of  court  and  in  the  presence  of 
the  jurors ;  that  the  verdict  was  determined  by  aggregation  and 
average,  or  by  lot  or  game  of  chance,  or  other  artifice  or  im- 
proper manner;  but  tliat  such'  affidavit,  to  avoid  the  verdict, 
may  not  be  received  to  show  any  matter  which  does  not  essen- 
tially inhere  in  the  verdict  itself ;  as  that  the  juror  did  not  assent 
to  the  verdict ;  that  he  misunderstood  the  instructions  of  the 
court ;  the  statements  of  the  witnesses,  or  the  pleadings  in  the 
case;  that  he  was  unduly  influenced  by  the  statements  or  other- 
wise of  his  fellow-jurors;  or  mistaken  in  his  calculations  or 
judgment,  or  other  matter  resting  alone  in  the  juror's  breast."  ^ 
This  rule  seems  to  be  now  settled  in  that  state,  by  being  repeat- 
edly approved  and  restated  in  subsequent  cases.  It  is  also  the 
rule  in  Kansas ;  ^  in  Tennessee ;  *  in  California,  by  statute,  affi- 
davits of  jurors  may  be  read  to  show  that  the  verdict  was 
arrived  at  by  "  a  resort  to  the  determination  of  chance."  ' 

Rendering  and  a^iending  verdicts. —  The  jury  retire  from 
the  presence  of  the  court  for  consideration  of  their  verdict  to 

Binn.    150;    Willing    v.    Swazey,    1  son,  8  Pick.  359;  Grinnell  v.  Phillips, 

Browne  (Pa.),  123;  Basley  v.  Chesa-  1  Mass.  530;  Woodward  v,  Leavitt, 

peake  Ins.  Co.  3  Gill  &  J.  473,  note;  107  Mass.   453;  Price  v.   Warren,  1 

Bladen  v.  Cockey,  1  Har.  &  McHen.  Hen.  &  M.  385;  Commonwealth  v. 

230.  Drew,  4  Mass.  391;  Salbrell  v.  Day,  1 

1  Smith  V.   Chatham,   3    Cai.    56;  Murphy,  94;    Cochran    v.    State,   7 

Warner  v.  Robinson,    1  Port.   194;  Humph.   544;    Luster    v.  State,   11 

Crawford  V.  State,  2  Yerg.  60;  Coch-  Humph,    169;    Hudson  v.    State,    9 

ran    v.   Street,   1    Wash,   (Va.)   79;  Yerg.  408. 

Little  V.   Larrabee,   2  Greenlf.    37;  2  Wright  v.  Illinois,  etc.  Tel.  Co,  20 

Howard  v.  Cobb,  3  Day,  309;  U.  S.  Iowa,  195, 

V,  Freis,  3  Dall.  515,  note;  Bradley's  3  Johnson  v.  Husband,  22  Kan.  277. 

Lesseesv.  Bradley,  4 Dall.  112:  Buck-  ■*  Crawford  v.   State,    2  Yerg.  60; 

man  v.  Greenleaf,'  48  Me.  394;  Ten-  Cochran  v.    State,    7  Humph.    544; 

ney  v.  Evans,  13  N.  H.  462;  State  v.  Hudson  v.  State,  9  Yerg.  408. 

Hascall,  6  N.  H.  352;  FerriU  v.  Simp-  5  Hoare  v.  Hmdley,  49  Cal.  274. 


800  PLEADING    AND    PKOCEDUKE. 

be  given ;  and  it  is  subject  to  their  consideration  until  it  has 
been  reported  to  and  accepted  by  the  court,  actually  or  con- 
structively recorded,  affirmed  by  them  in  open  court,  and  they 
have  separated  and  thus  become  accessible  to  the  parties.^  Thus, 
in  one  case,'  by  a  misconception  of  legal  terms,  the  jury  had 
returned  a  verdict  the  reverse  of  what  they  intended,  and  it  was 
affirmed  by  the  jury  in  open  court ;  but  they  had  not  separated 
or  left  their  seats,  though  the  writ  in  the  next  case  had  been 
read  to  them ;  when  the  error  being  discovered,  the  presiding 
judge  explained  the  terms  which  had  been  misunderstood,  and 
delivered  the  papers  to  the  jury  again. 

When  a  verdict  has  thus  been  rendered,  the  duties  of  the 
jury  have  been  fully  performed,  and  their  power  exhausted; 
they  cannot  afterwards  be  recalled  to  alter  or  amend  their  ver- 
dict.'' Any  recommendation  by  the  jury  for  a  change  of  their 
verdict,  after  they  have  rendered  it  and  separated,  is  inopera- 
tive ;  and  any  alteration  of  it  made  upon  such  recommendation 
is  invalid.*  A  verdict  was  brought  into  court  in  writing  for  the 
defendant,  handed  to  the  clerk,  who  read  it  as  a  verdict  for  the 
plaintiff ;  as  so  read,  it  was  affirmed  b}''  the  jury,  and  ordered 
to  be  recorded;  and,  thereupon,  the  jury  were  discharged. 
Afterwards,  the  wrong  reading  having  been  suggested,  and  it 
appearing  by  the  written  verdict  and  the  affidavit  of  the  jurors 
that  they  intended  to  find  for  the  defendant,  the  judge  ordered 
the  verdict  for  the  defendant  to  be  recorded.  This  was  held  to 
be  erroneous ;  because  the  verdict  as  found  and  written  had  not 
been  affirmed  in  open  court,  and  it  was  set  aside.^  In  another 
case,  a  jury  under  instructions  from  the  court  found  for  the 
plaintiff  on  both  counts  of  his  declaration,  and  assessed  separate 
damages  on  each.  Thereupon  the  court  instructed  the  jury 
that  the  plaintiff  was  not  entitled  to  recover  on  the  second 
count,  and  ordered  them  to  find  for  the  defendant,  which  they 

1  Root  V.  Sherwood,  6  John.  68;  473;  Sasser  v.  State,  13  Ohio,  453; 
Blackely  v.  Sheldon,  7  John.  32;  Rigg  v.  Cook,  9  111.  336;  Miller  v. 
Goodwin  v.  Appleton,  32  Me.  453;  Hoc,  1  Fla.  189;  Martin  v.  Morelock, 
Lawrence  v.  Stearns,  11  Pick.  501.  33  lU.  485. 

2  Ward  V.  Bailey,  23  Me.  316.  *  Id. 

3  Snell  V.  Bangor  Nav.  Co.  30  Me.  5  Bucknam  v.  Greenleaf ,  48  Me. 
337;  Walter  v.  Jenkins,  16  S.  &  R.  394. 

414;  Sargent  v.  State  Bank,  11  Ohio, 


VERDICT   AND   JUDGMENT.  807 

accordingly  did.  On  the  case  being  brought  into  the  court  of 
last  resort,  on  exceptions,  it  was  held  that  the  court  had 
no  authority  to  amend  the  verdict,  so  as  to  make  it  conform  to 
the  first  finding  of  the  jury,  although  the  first  instruction  to 
them  was  right  and  the  last  wrong.  ^ 

The  parties  may  waive  the  affirmation  of  the  verdict  before 
the  separation  of  the  jury  after  they  have  agreed.  This  is  fre- 
quently done  where  it  is  anticipated  that  the  jury  will  agree 
upon  a  verdict  during  an  intermission  of  the  court ;  they  are 
then  directed  to  reduce  it  to  writing,  seal  it  up,  and  deliver  it 
to  their  foreman,  or  the  clerk  of  the  court.^  The  jury  must 
appear  and  affirm  their  verdict  after  the  court  convenes ;  it  is 
not  their  verdict  before ;  in  other  words,  the  functions  of  the 
jury  continue  until  they  have  rendered  their  verdict  in  court, 
affirmed  it  and  been  discharged.'  A  jury  rendered  a  verdict 
in  writing  which  had  been  sealed,  and  after  which  they  had 
separated,  for  the  sum  of  "  sixteen  and  seventy-four  dollars." 
The  clerk  read  it  to  them  $1,674,  and  each  affirmed  it  as  read. 
The  court  say :  "  Under  our  practice  this  last  answer  by  each 
juror  made  the  verdict.  Keither  giving  an  assent  in  the  jmy 
room,  nor  the  signing  of  a  writing  there,  nor  the  delivery  of  it 
to  the  clerk,  absolutely  bound  the  conscience  of  any  juror  in 
this  case ;  all  these  are  revocable  acts ;  until  he  gave  an  affirma- 
tive answer  to  this  last  question  by  the  clerk,  there  was  space 
for  change  of  opinion  and  an  opportunity  to  recall  any  previous 
act  or  word."  *  In  a  late  case,  in  Maine,  a  jury  were  allowed 
to  seal  up  their  verdict  after  tlie  adjournment  of  the  court  for 
the  day,  and  then  to  separate  for  the  night.  In  the  morning  it 
was  opened  and  affirmed  by  eleven,  by  consent,  the  twelfth 
juror  being  absent  by  leave  after  this  consent  was  obtained. 

1  Robberts  v.  Rockbottom  Co.  7  1  Gray,  294;  Commonwealth  v.  Car- 
Met.  46.  rington,    116    Mass.    37;    Browu    v. 

-  In  practice,  tbis  course  is  gener-  Dean,  123  Mass.  254;  Commonwealth 
ally  assented  to  by  the  parties;  con-  v.  Dorus,  108  Mass.  488;  Winslow  v. 
sent    is,    probabh',    not.  necessary.  Draper,  8  Pick.  170. 
Sutleff  V.  Gilbert,  8  Ohio,  405;  Sar-  SBunnv.  Hoji;,  3  John.  255;  Doug- 
gent  V.  State,  11  Ohio,  472;  State  v.  lass  v.  Tousey,  2  Wend.  352. 
Eagle,  13  Ohio,  490;  Green  v.  Bliss,  *  WatertowTi  E.  So.  App.  46  Conn. 

13  How.  Pr.  438;  Chapman  v.  Coffin,  230;  Ederlen  v.  Thompson,  2  Har.  & 

14  Gray,  454;  Pritchard  v.  Henuessy,  Gill,  31. 


808  PLEADING   AJSTD   PKOCEDUEE. 

The  verdict,  as  affirmed,  was  for  $9.31.  A  few  minutes  after 
its  affirmation,  the  eleven  jurors  having  retained  their  seats, 
they  made  known  to  the  court  that  they  intended  to  give  a  ver- 
dict for  $74.31,  being  $65  sued  for,  and  $9.31  interest,  and  that, 
by  mistake,  only  the  latter  sum  was  inserted  in  the  blank.  The 
defendant's  counsel  would  not  consent  to  the  correction.  After 
awaiting  the  return  of  the  twelfth  juror,  and  finding  that  he 
confirmed  the  statement  of  his  fellows,  the  court  allowed  the 
jury  to  retire  and  bring  in  a  new  verdict  for  the  sum  of  $74.31. 
This  was  held  to  be  error,  and  a  new  trial  was  granted.  The 
court  say :  "  Where  the  error  has  been  committed  by  the  jury, 
either  by  returning  a  verdict  for  the  wrong  party,  or  for  a 
larger  or  smaller  sum  than  they  intended ;  and  by  the  amend- 
ment, proposed  the  verdict  would  be  reversed,  or  the  damages 
increased  or  diminished,  and  the  substantial  rights  of  the  parties 
thus  changed ;  when  the  verdict  has  been  affirmed  in  open  court, 
and  the  jury  separated,  and  become  accessible  to  the  parties^ 
the  only  remedy  for  such  a  mistake  is  by  setting  aside  the  ver- 
dict and  granting  a  new  trial."  But  where  the  finding  of  the 
jury,  or  the  record  of  it,  is  defective  or  erroneous  in  matter  of 
form,  having  no  connection  with  the  merits  of  the  case,  nor 
affecting  the  rights  of  the  parties,  the  court  may  make  the 
correction.^ 

At  a  subsequent  term,  an  amendment  of  a  general  verdict 
was  allowed  by  the  judge's  minutes,  where  there  were  several 
counts  for  the  same  cause  of  action,  one  of  which  was  bad,  so 
as  to  take  the  verdict  on  the  good  count  only.^  "Where  the  jury 
returned  a  verdict  in  an  action  of  trover,  that  "  the  defendant 
did  promise  in  manner  and  form  as  the  plaintiff  has  declared 
against  him,"  with  an  assessment  of  damages,  the  court  at  a 
subsequent  term,  and  after  a  motion  for  a  new  trial,  corrected 
the  verdict,  on  the  plaintiff's  motion,  by  striking  out  "  did  prom- 
ise," and  inserting  "  is  guilty,"  and  it  was  held  right.^    So,  in 

1  Weston  V.  Gilmore,  63  Me.  493;  Feize  v.  Thompson,    1   Taunt.    121; 

Little  V.    Larrabee,    2    Greenlf.   37;  Ernest  v.  Brown,  4  Bing,  N.  C.  162; 

Woodruff  V.    Webb,    32    Ark.    612;  Queen  v.  Fall,   10  L.  J.  Q.  B.  145; 

Rockefeller  v.  Donnelly,  8  Cow.  623,  Cunningliam  v.  Ware,  Cro.  Jac.  239. 

652;  Beekman  v.  Bemas,  7  Cow.  29;  -Barnard    v.    Whiting,    7    Mass. 

Petrie  v.  Hannay,  3  T.  R.  659;  Ed-  358. 

dower  v.   Hopkins,    1    Doug.    376;  ^  jjoey  v.  Candage,  61  Me.  257, 


VKKDICT    AND    JUDGIUEXT.  809^ 

Yermont,  wliere  a  jury,  in  an  action  of  assumpsit,  rendered  a 
verdict  tliat  tlie  defendant  is  guilty,  the  court,  after  the  dis- 
charge of  the  jury,  permitted  the  verdict  to  be  amended  by 
striking  out  the  words  "  is  guilty,"  and  inserting  "  did  promise."  ^ 
If  a  jury  return  a  verdict  into  court  which  is  not  such  as 
the  issue  requires,  the  court  may  send  them  back  to  reconsider 
of  then'  verdict  with  appropriate  instructions,  at  any  time  be- 
fore ttie  verdict  has  been  recorded  and  the  jury  discharged.^ 
Before  a  verdict  has  been  recorded,  the  jury  may  be  re- 
quired to  reconsider  it,  if  there  appears  to  be  a  mistake ;  and 
may  be  sent  out  for  that  purpose  —  or  to  perfect  their  finding.' 
But  if  the  verdict,  when  returned  by  the  jury,  settles  the  rights 
of  the  parties,  and  will  sustain  a  judgment,  it  is  improper  for 
the  judge  to  send  them  out  again  for  further  consideration.^  It 
is  in  the  discretion  of  the  trial  judge  to  interrogate  the  jury  on 
their  bringing  in  a  verdict  to  ascertain  upon  what  principle  they 
have  found  it,  when  there  is  reason  to  suspect  the  jury  have 
made  some  mistake.*  The  court  will  not  alter  a  verdict  unless 
it  appears  on  the  face  of  the  verdict  that  the  alteration  is  accord- 
ing to  the  intention  of  the  jury.^  The  court  has  no  authority  to 
supply  substantial  omissions  in  a  verdict ;  nor  to  reconcile  incon- 
gruities ;  but  when  the  verdict  is  informally  expressed,  the  court 
may  and  should  mould  it  into  form,  and  give  it  legal  effect."' 

1  Foster  v.  Caldwell's  Estate,  18  Vt.  v.  Hennessey,  1  Gray,  294;  Sutliflf  v. 
176.  Gilbert,  8  Ohio,  405. 

2  Goodwin  v.  Appleton,  22  Me.  453.  *  Sutliff  v,    Gilbert,    supra;    Mar- 
lu  Woodruff  V.  Richardson,  20  Conn,  guard  v.  Wheeler,  52  Cal.  445. 

238,  the  jury  brought  in  a  verdict  for  ^  Jackson  v.  Dickenson,  15  John. 

$1,100  as  damages  for  slander;  the  309.     See  Anderson  v.  Green,  46  Ga. 

amount  was  thought  by  tlie  presid-  361. 

ing  judge  to  be  too  high,  and,  after  ^  Spencer  v.  Gates,  1  H.  Bl.  78. 

expressing  his  views,  sent  tlie  jury  ''Stewart  v.  Fitcli,  31  N.  J.  L.  17; 

out  to  consider  the  case  again,  the  Delaware,  etc.  R.  R.   Co.  v.  Taffey, 

result  of  which  was  a  verdict  of  38  N.  J.  L.  525;  Woodruff  v.  Webb, 

$800.     This  verdict  was  retained.  32  Ark.   612;  Hawks  v.   Crofton,  2 

3 Brown  v.   Dean,   123  Mass.  254;  Burr.  698;  Foster  v.  Jackson,  Hob. 

Root  v.  Sherwood,  6  John.  68;  Wolf-  52;  Phillips  v.  Kent,  23  N.  J.  L.  155; 

son  V.  Eyster,  7  Watts,  38;  Blackley  Thompson  v.    Button,  14  John.  84; 

V.  Sheldon,  7  John.  32;  Chapman  v.  Hodges  v.   Raymond,  9  Mass.  316; 

Coffin,  14  Gray,  454;  Warner  v.  N.  Burkaus  v.  Tebbits,  7  How.  Pr.  21; 

Y.  C.  R.  R.  Co.  52  N.  Y.  437;  Mason  Jones    v.    Kennedy,   11    Pick.    125; 

V.  Massa,  122  Mass.  477;  Pritchard  Clarke  v.  Lamb,  6  Pick.  512;  Porter 


810  PLEADliS'G    AJnD    PliOCEDUKE. 

Excessive  oe  insufficient  verdicts. —  If  there  is  a  legal  meas- 
ure of  damages  "which  the  jury  have  deviated  from,  by  finding 
either  less  or  more  than  the  plaintiff  is  entitled  to,  by  a  clear 
preponderance  of  evidence,  the  trial  court,  in  the  exercise  of 
judicial  discretion,  will  entertain  a  motion  for  a  new  trial  on  be- 
half of  the  party  injured  by  the  finding.^  So  if  the  jury  assess 
damages  not  warranted  by  the  declaration,  it  will  be  set  aside, 
and  the  court  may  do  it  ex  officio? 

"Where  there  is  not  a  legal  measure  of  damages,  and  where 
the  damages  are  unliquidated,  and  the  amount  is  referred  to  the 
discretion  of  the  jury,  the  court  will  not,  ordinarily,  interfere 
with  the  verdict.  It  is  the  peculiar  province  of  the  jury  to  de- 
cide such  cases,  under  appropriate  instructions  from  the  court ; 
and  the  law  does  not  recognize  in  the  court  the  power  to  substi- 
tute its  own  judgment  for  that  of  the  jury.^  Although  the  ver- 
dict may  be  considerably  more  or  less  than  in  the  judgment  of 
the  court  it  ought  to  have  been,  still  it  will  decline  to  interfere, 
unless  the  amount  is  so  great  or  so  small  as  to  indicate  that  the 
jury  must  have  found  their  verdict  under  the  influence  of  passion 
or  prejudice;  or  in  other  words,  that  it  is  the  result  of  a  per- 
verted judgment,  and  not  that  of  their  cool  and  unpartial  de- 
liberation. When  the  verdict  is  thus  excessive,  or  deficient,  the 
trial  coiu't,  in  its  discretion,  wiR  interpose  and  set  it  aside.* 

V.  Paimmeiy,  10  Mass.   64;  Wilder-  44;  Walker  v.  Smith,  1  Wash.  C.  C. 

man  v.  Sandusky,  15  111.  59;  Hamm  153;    Duncan   v.   Finnyham,  Sneed 

V.  Calvey,  84  111.  56.  (Ky.),  262;  M.  K.  &  T.  R.  R.  Co.  v. 

1  Walker  v.  Smith,  1  Wash.  C.  C.  Weaver,  16  Kan.  456;  Simpson  v. 
152;  McDonald  v.  Walker,  40  N.  Y.  Pitman,  13  Ohio,  365;  Parish  v. 
551;  Nutter  v.  Junction  R.  R.  Co.  13  Reigie,  11  Gratt.  697;  Quigley  v.  Cent. 
Ind.  479;  Berry  v.  Vreeland,  21  N.  Pacific  R.  R.  Co.  11  Nev.  350;  Al- 
J.  L.  183.  drich  v.  Palmer,  24  Cal.  513;  Shortle 

2  Stewart  v.  Tevri,  7  T.  B,  Mon.  v.  Minneapolis,  17  Minn.  308;  Russell 
109;  Hall  v.  Hall,  42  Ind.  585.  v.   Dennison,  45  Cal.  337;  Wells  v. 

3  Chicago  V.  Smith,  48  111.  107;  Sanger,  21  Mo.  354;  Terre  Haute, 
Bourke  v.  Balow,  1  Bay,  49;  Waters  etc.  R.  R.  Co.  v.  Vanetta,  21  111.  188: 
V.  Bristol,  26  Conn.  398;  North  v.  Beaulieu  v.  Parsons,  2  Minn.  37; 
Cotes,  2  Bibb,  591;  Terre  Haute,  etc.  Waters  v.  Bristol,  26  Conn.  398; 
R.  R.  Co.  V.  Vanetta,  21  111.  188;  Boyers  v.  Pratt,  1  Humph.  90;  Clapp 
CoUins  V.  Albany,  etc.  R.  R.  Co.  12  v.  Hudson  R.  R.  Co.  19  Barb.  461; 
Barb.  492.  Moore  v.    Burchfield,  1  Heisk.  203; 

4  Goodall  V.  Thurman,  1  Head,  Union  Pacific  R.  R.  Co.  v.  Hand,  7 
200;  Coleman  v.  Southwick,  9  John.  Kan.  380;  Chicago,  etc.  R.  R.  Co.  v. 


VEIiDICT    A2s"D   JUDGMENT. 


811 


If  no  error  is  shown  in  the  admission  or  rejection  of  evidence, 
or  in  the  instructions,  the  objection  is  not  generally  available 
in  error  that  the  damages  are  excessive.^  If,  however,  on  the 
natm^e  of  the  case,  or  on  a  proper  return  of  all  the  testimony, 
the  point  can  be  raised  in  the  appellate  court,  as  under  the 
practice  in  many  of  the  states  it  can ;  and  it  thus  clearly  appears 
that  the  damages  found  are  excessive,  the  judgment  will  be  re- 
versed on  that  ground.^  In  some  jurisdictions  the  appellate 
court  may  reverse  in  part,  and  render  such  judgment  as  the  court 
below  ought  to  have  rendered.  There,  if  the  damages  are  ex- 
cessive, the  court  may  reverse  altogether,  or  reduce  the  amount 
of  the  judgment,  affirming  it  for  a  lesser  sum  where  the  requisite 


Peacock,  48  111.  253;  North  v.  Cotes, 
2  Bibb,  591;  Diblin  v.  Murphy,  3 
Sandf.  19;  Sheriy  v.  Frecking,  4 
Duer,  452;  Guard  v.  Risk,  11  Ind. 
156;  Harris  v.  Rupel,  14  Ind.  209; 
Tater  v.  Mullen,  23  Ind.  562;  Alex- 
ander V.  Thomas,  25  Ind.  268;  Birch- 
ard  V.  Booth,  4  Wis.  67,  Bierbauer 
V.  N.  Y.  etc.  R.  R.  Co.  15  Hun,  559; 
Bass  V.  Chicago,  etc.  R.  R.  Co.  42 
Wis.  654;  Plath  v.  Braundorff,  40 
Wis.  107;  Davis  v.  Cent.  R.  R.  Co. 
60  Ga.  329;  Cummins  v.  Crawford, 
88  lU.  312;  Solen  v.  Virginia  City, 
etc.  R.  R.  Co.  13  Nev.  106;  IlUnois 
Cent.  R.  R.  Co.  v.  Parks,  88  111.  373; 
Hammond  v.  Mukwa,  40  Wis.  35; 
NasliviUe,  etc.  R.  R.  Co.  v.  Smith,  6 
Heisk.  174;  Goodno  v.  Oshkosh,  28 
Wis.  300;  Nettles  v.  Harrison,  2  Mc- 
Cord,  230;  Armitage  v.  Haley,  4  Q. 
B.  917;  Price  v.  Severn,  7  Bing.  402; 
Tenny  v.  New  Jersey  S.  B.  Co.  5 
Lans.  507;  Coins  v.  Western  R.  R. 
Co.  59  Ga.  426;  Chicago,  etc.  R.  R. 
Co.  V.  Hughes,  87  III.  94;  Chicago, 
etc.  R.  R.  Co.  v.  Payzant,  87  111.  125; 
U.  P.  R.  R.  Co.  V.  House,  1  Wyo.  27; 
Blunt  V.  Little,  3  Mason,  102;  Whip- 
ple V.  Cumberland  M.  Co.  2  Story, 
061. 

1  Brushaber     v.     Stegemann,     22 


Mich.  266;  Neal  v.  Singleton,  26  Ark. 
491. 

2  Cuff  v.  Borland,  57  N.  Y.  560; 
Metcalf  V.  Baker,  57  N.  Y.  662; 
Hayden  v.  Florence  Sewing  M.  Co. 
54  N.  Y.  231;  Stickney  v.  Bronson,  5 
Minn.  215;  Burdick  v.  Weeden,  9  R. 
I.  139;  Wilkins  v.  Gilmore,  2  Humph. 
140;  Johnson  v.  Van  Kettler,  66  111. 
63;  Chicago,  etc.  R.  R.  Co.  v.  McAra, 
52  lU.  296;  Decatur  v.  Fisher,  53  111. 
407;  Cassell  v.  Hays,  51  HI.  261; 
Chicago  V.  Kelly,  69  111.  475;  Coch- 
rane V.  Tuttle,  75  111.  361;  Goetz  v. 
Ambs,  22  Mo.  170;  Woodson  v.  Scott, 
20  Mo.  272;  Barth  v.  Merritt,  20  Mo. 
567;  Ellsworth  v.  Central  R.  R.  Co. 
34  N.  J.  L.  93;  Patten  v.  Chicago, 
etc.  R.  R.  Co.  32  Wis.  524;  Mentz  v. 
2d  Ave.  R.  R.  Co.  2  Robt.  356;  Union 
Pacific  R.  R.  Co.  v.  Miiliken,  8  Kan. 
647;  Jacksonville  v.  Lambert,  63  111. 
519;  Chicago  v.  Jones,  66  111.  349; 
Chicago,  etc.  R.  R.  Co.  v.  Garvy,  58 
111.  83;  Chicago  v.  Langlass,  66  111. 
361;  Pullman  P.  C.  Co.  v.  Reed,  75 
111.  125;  Huftalin  v.  Mesner,  78  111. 
55;  Dearlove  v.  Herrington,  70  111, 
251;  Newton  v.  Locklin,  77  111.  103; 
Walker  v.  Martin,  52  111.  347;  Ross 
V.  Ross,  5  B.  Mon.  20;  Holburn  v. 
Neal,  4  Dana,  131. 


812  PLEADING    AND   PKOCEDUKE. 

(lata  are  furnished  by  the  record.^  The  objection  of  excessive 
damages  found  may  in  many  cases  be  removed  by  the  plaintiff 
remitting  the  excess.  This  may  be  done  in  the  trial  court  and 
also  in  tlie  appellate  court.  If  the  jury  have  decided,  upon  the 
testimony  submitted  to  them,  several  items  or  elements  of  dam- 
age, and  on  review  one  or  more  of  them  are  held  to  be  improp- 
erly included,  a  remission  of  so  much  of  the  damages  as  was 
thus  improperly  allowed,  when  the  amount  can  be  ascertained, 
will  remove  the  objection  of  such  excess.^  But  where  the  erro- 
neous part  so  allowed  cannot  be  ascertained,  and  it  is  impossible 
to  tell  what  the  jur}'-  acted  upon,  or  how  they  made  up  their 
verdict,  nndcr  the  charge  of  the  court,  so  as  to  correct  the  error, 
and  arrive  at  the  amount  they  should  have  given,  justice  be- 
tween the  parties  cannot  be  done  by  a  remittitur.*  A  plaintiff 
who  has  recovered  a  verdict,  or  judgment,  Avhich,  as  rendered, 
is  clearly  erroneous,  and  seeks  to  avoid  a  reversal  by  striking 
out  a  part,  must  satisfy  the  court,  either  by  material  in  the 
record  or  by  fair  presumption,  that  this  can  be  done  without 
injustice  to  the  defendant.  If  he  cannot  do  this,  the  defendant 
^s  entitled  to  have  the  verdict  set  aside,  or  the  judgment  reversed.* 
In  an  action  for  two  tracts  of  land,  the  judgment  of  the  trial 
court  was  given  for  the  plaintiff  for  both  tracts,  and  for  dam- 
ages. On  appeal,  the  judgment,  as  to  one  tract,  was  affirmed, 
and  reversed  as  to  the  other.  The  court  held  that,  as  there  was 
no  data  in  the  record  for  the  apportionment  of  the  damages, 

iSterrett  v.   Creed,   2  Ohio,   443;  48  N.  H.  191;  Evertson  v.  Sawyer,  3 

Fields  V.  ]\ront,  15  Abb.  6;   Coliea  v.  Weud.  507;   Howard  v.  Grover,  28 

State,  34  Miss.  179;   Overall  v.  Bab-  Me.  97;   Spackmau  v.  Byers,  6  S.  & 

son,  2  Yerg.  71;   Mooney  v.  Hudson  R.  385;  Atwood  v.  Gillespie,  4  Mo. 

R.  R.  R.  Co.  1  Sweeney,  325.  423;  Pendleton  St.  R.  R.  Co.  v.  Roli- 

2  Lambert  v.  Craig,  12  Pick.  199;  maun,  22  Ohio  St.  446;  Hury  v.  Wat- 
King  V.  Howard,  1  Cush.  137;  Bank  son,  4  T.  R.  659;   Toledo,  etc.  R.  R. 
of  Ky.  V.  Ashley,  2  Pet.  327;  Hodges  Co.  v.  Beals,  50  111.  150;  Kavanaugh 
V.  Hodges,  5  Met.  205;  Sanborn  v.  v.  Janesville,  24  Wis.  618;   Bigelow 
Emerson,  12  N.  R.  57;  Treschett  v.  v.  Doolittle,  36  Me.  115;  Strong  v. 
Hamilton  M.  Ins.  Co.  14  Gray,  456;  Hove,  41  Wis.  659. 
Pierce  v.  Wood,  23  N.  H.  519;  Wil-  3  Smitli  v.  Dakes,  5  Minn.  373. 
lard  V.  Stevens,  24  N.  H.  271;  Adlem  4  o.  &  A.  R.  R.  Co.  v.  Fuluey,   17 
V.  Gove,  41  N.  H.  465;  Cross  v.  Wil-  Gratt.  366. 
kin,  43  N.  H.  332;   Crum  v.  Hadley, 


VERDICT   A^■D   JUDGMENT.  813 

the  entire  judgment  should  be  reversed  unless  all  the  damages 
were  remitted.^  "Where  the  findings  are  not  sustained  by  the 
evidence  on  the  question  of  damages,  the  court  may  require  the 
plaintiff  to  remit  the  damages,  or  submit  to  a  ne^v^  trial.^  In  an 
action  of  slander,  the  trial  court  erred  in  excluding  evidence 
offered  in  mitigation.  The  plaintiff  was  allowed  to  retain  the 
verdict  only  on  condition  that  he  Avould  consent  to  have  it 
amended  to  one  for  nominal  damages.'  A  jury  rendered  a  ver- 
dict for  the  full  amount  of  a  plaintiff's  claim,  notwithstanding 
he  had  received  a  horse,  wagon  and  sundry  articles  of  clothing 
of  considerable  value,  which  should  be  deducted  from  the 
claim.  Because  the  amount  which  should  be  allowed  for  this 
jDropert}^  was  not  ascertained,  the  objection  of  excess  could  not 
be  removed  by  remittitur.^ 

In  those  cases  in  which  there  is  no  legal  measure  of  damages, 
or  they  are  unliquidated ;  where  courts  only  interfere  if  there  is 
such  an  excess  as  indicates  that  the  jury  have  been  influenced 
by  passion  or  prejudice,  the  plamtiff  may  have  the  benefit  of 
remitting  a  part;  so  that  if  the  amount  is  not  still  excessive,  a 
new  trial  will  not  be  granted.^  In  many  instances,  in  cases  of 
this  nature,  the  court,  on  finding  the  damages  too  large,  have 
suggested  the  amount  of  reduction,  and  thus  given  the  plaintiff 
a  guide  as  to  the  amount  to  be  remitted.  Oakley,  C.  J.,  said: 
"  We  have  considered  it,  and  find  no  objection  on  principle  to 
reducing  the  verdict  to  an  amount  such  as,  if  the  jury  had  found 
it  as  damages,  we  would  not  interfere  w^ith  then*  conclusion. 
That  is,  in  effect,  for  the  court  to  say  to  the  plaintiff,  if  you  will 
enter  a  remittitur  so  as  to  reduce  the  verdict  to  such  a  sum  as 
we  think  would  not  have  been  unreasonable,  if  it  had  been 
found  by  the  jury,  we  will  not  set  it  aside."  The  verdict  was 
81,500,  and  the  court  gave  the  plaintiff  the  option  to  remit 
$1,000  and  take  judgment  for  the  residue.^     There  is  an  appar- 

1  Hodapp  V.  Sharp,  40  Cal.  69.  tier,  66  III.  63;   Collins   v.  Council 

2  Carpentier  v.  Gardiner,  29  Cal.      Bluffs,  35  Iowa,  433. 

160.  «Diblin  v.  Murphy,  3  Saudf.  19; 

3  Clark  V.  Brown,  116  Mass.  504.  Johnston  v.   Morrow,   60  Mo.    339; 

4  Lambert  v.  Craig,  13  Pick.  199.  Collins  v.  Albany,  etc,  R.  R.  Co.  13 
5Uphamas  v.  Dickinson,  50  111.  97;  Barb.  493;  Hegeman  v.  Western  R. 

Louisville,  etc.  R.  R.  Co.  v.  Ht)dge,  R.  Co.  16  Barb.  353;  13  N.  Y.  9; 
U  Bush,  141;  Johnson  v.  Van  Ket-     Whitehead  v.  Kennedy,    69  N.    Y. 


su 


TLEADlJS'a    AND    TKOCEDUKE. 


ent  departure  from  sound  principle  in  this  practice.  The  court 
conckides  that  the  jury  were  influenced  by  passion,  or  prejudice, 
or  both,  because  they  found  such  excessive  damages ;  and  yet 
allow  their  finding,  covering  the  major  propositions  of  the  case 
upon  which  damages  are  consequent,  to  stand.  Why  should  a 
verdict  be  in  part  retained  if  the  jury  were  really  influenced  by 
passion  or  prejudice  ?  Where  their  estimate  of  damages  is  re- 
jected and  another  substituted,  is  the  latter  a  verdict  ?  ^ 

In  the  trial  court,  after  a  motion  for  a  new  trial  has  been 
granted,  on  the  ground  of  excessive  damages,  it  is  held,  in  In- 
diana, to  be  too  late  to  avoid  the  objection  by  remitting  the  ex- 
cess ;  2  and  in  Kentucky,  that  it  is  too  late  after  judgment ;  at 
all  events,  after  the  close  of  the  term.^  The  remission,  to  have 
effect,  should  be  made  during  the  term,  and  while  the  judgment 
is  under  the  control  of  the  court.*     A  remission  in  the  court 


462,  470;  Spicer  v.  Chicago,  etc.  R. 
R.  Co.  29  Wis.  580;  Patten  v.  Chi- 
cago, etc.  R.  R.  Co.  32  Wis.  524; 
Lombard  v.  Chicago,  etc.  R.  R.  Co. 
47  Iowa,  494;  Murray  v.  Hudson  R. 
R.  R.  Co.  47  Barb.  196:  Burbauer  v. 
N.  Y.  etc.  R.  R.  Co.  15  Hun,  559; 
Eliot  V.  Allen,  1  C.  B.  18. 

1  See  Luson  v.  Smith,  1  Nev.  & 
Man.  304;  Sherrey  v.  Frecking,  4 
Duer,  452;  Koeltz  v.  Blackmau,  46 
Mo.  320. 

2  Hill  V.  Newman,  47  Ind.  187. 

3  Beadle  v.  Schoals,  1  A.  K.  Marsh. 
475;  Holeman  v.  Coleman,  1  A.  K. 
Marsh.  297;  James  v.  Wilson,  7  Tex. 
230.  In  Planters'  Bank  v.  Union 
Bank,  16  Wall.  483,  497,  Strong,  J., 
said:  "It  is  further  assigned  for 
error  by  the  defendants,  that  the 
court  allowed  the  plaintiffs  to  with- 
draw a  remittitur  entered  by  them 
of  part  of  the  verdict  obtained  on  a 
former  trial  of  the  case.  The  only 
objection  made  in  the  court  below  to 
the  allowance  was,  that  the  remitti- 
tur was  an  acknowledgment  of  I'ec- 
ord  that  the  amount  remitted  was 
not  due.  There  had  been  a  former 
trial,   in  which    the  plaintiffs    had 


obtained  judgment  for  $113,296.01, 
with  five  per  cent,  interest  from 
November  25,  1863.  This  was  a 
larger  amount  of  interest  than  the 
petition  of  the  plaintiffs  had  claimed, 
and  they  entered  on  the  judgment  a 
remittitur  of  the  excess,  expressly 
reserving  their  rights  to  the  balance 
of  the  judgment.  Subsequently  a 
new  trial  was  granted,  and  it  is  now 
contended  that  the  remittitur  had 
the  effect  of  a  retraxit.  As  it  was 
entered  after  judgment,  such  per- 
haps Avould  be  the  effect  if  the  judg- 
ment itself  had  not  been  set  aside, 
and  a  new  trial  had  not  been 
granted.  Bowden  v.  Home,  7  Bing. 
716.  But  such  cannot  be  its  oper- 
ation now.  If  it  takes  effect  at  all, 
it  must  in  its  entirety,  and  the 
plaintiffs  must  hold  their  first  judg- 
ment for  the  balance  unremitted. 
As  their  judgment  no  longer  exists, 
there  is  no  reason  for  holding  that 
the  remission  of  a  part  of  it  is 
equivalent  to  an  adjudication  against 
them." 

4  Russell  v.  Hubbard,  59  111.  335; 
Rowan  v.  People,  18111.  159;  Buckles 
v.  Northern  Bank  of  Ky.  63  lU.  288; 


VERDICT   AND   JUDGMENT.  815 

below  of  the  amount  of  damages  allowed  by  the  jury,  will 
estop  the  party  from  setting  up  any  claim  of  damages  in  the 
appellate  court.^ 

Where  it  appears  that  at  least  nominal  damages  should  have 
been  given,  but  the  jury  have  found  a  verdict  for  the  defend- 
ant, then,  whether  the  court  will  grant  a  new  trial  will  depend 
on  whether  any  other  right  than  that  to  nominal  damages  is 
involved  in  the  question.  If  not,  a  new  trial  will  not  be 
granted.2  But  if  a  judgment  for  the  plaintiff  would  entitle  him 
to  costs,  or  is  necessary  to  vindicate  any  right  di^awn  in  ques- 
tion, a  new  trial  will  be  granted,  if  the  jury  have  erroneously 
found  for  the  defendant  v.dien  they  should  have  found  nominal 
damages  for  the  plaintiff.^  The  rule  that  a  new  trial  ^vill  not 
be  granted  in  favor  of  a  plaintiff  who,  at  most,  is  entitled  to 
nominal  damages,  applies  only  to  cases  where  the  tri^'ial  nature 
of  the  claim  is  clear  and  unquestionable.^  The  smallness  of  the 
damages  is  no  objection  to  a  new  trial  when  the  verdict  is 
manifestly  contrary  to  the  evidence  and  the  judge's  charge  to 
the  jury.^  If  a  case  is  submitted  to  a  court  upon  an  agreed 
statement  of  facts,  in  which  the  damages  are  not  fixed,  or  an 
assessment  provided  for,  the  judgment,  if  for  the  plaintiff,  will 
be  for  nominal  damages  only. 

Fury  V.  Stone,  2  Dall.  184.  In  Hibbard  v.  Western  U.  Tel.  Co.  33 
Crockett  v.  Culvert,  8  Ind.  127,  a  Wis.  558;  Jones  v.  King,  33  Wis. 
juiy  in  a  justice's  court  found  a  422;  Chase  v.  Bassett,  15  Abb.  N.  S. 
verdict  of  $100  in  favor  of  the  293;  Elwell  v.  Bradham,  2  Speers, 
lilaintiflf,  and  judgment  was  ren-  141;  Sherwood  v.  Gibson,  5  Upp. 
dered  thereon;  but  before  the  entry  Can.  Q.  B.  205;  Smith  v.  Weed  Sew- 
on  the  justice's  docket  was  signed  ing  M.  Co.  26  Ohio  St.  562;  Mahony 
and  sealed  by  liim,  the  plaintiff  en-  v.  Robbins,  49  Ind.  146;  Hudspeth  v. 
tered  a  ronittitar  of  $25  of  the  AUen,  26  Ind.  165;  Patton  v.  Hamil- 
judgmeut.  The  defendant  appealed,  ton,  12  Ind.  256;  Hucker  v.  Blake, 
and   the  appellate    court    rendered  17  Ind.  97. 

judgment  for  $80;  held,  a  reduction  3  McCarty  v.  Leggett,  3  Hill,  134; 
of    the    judgment    so    as   to  carry  High  v.  Johnson,  28  Wis.  72;  Rosen- 
costs;  because  the  remittitur  should  baum  v.  McThomas,  34  Ind.  331. 
have  been  of  $25  of  the  verdict,  and  *  McCarty      v.      Leggett,     supra; 
judgment  taken  for  the  remainder.  Plumleigh  v.    Dawson,    6    111.    544; 

•  Kemp    V.    Peters,   2    Rob.   (La.)  Teal  v.  Russell,  3  111.  319. 

331.  5  Brooklyn  v.  Sequa,  Tay.  (N.  C.) 

-'Eaton    V.   Lyman,    30    Wis.   41;  263. 
Laubenlieimer  v.  Mann,  19  Wis.  519; 


816 


PLEADING   AND    PEOCEDUEH. 


Yeedicts  must  be  certain. —  The  verdict,  besides  being  re- 
sponsive to  tlie  issues,  should  find  the  amount  of  damages  that 
the  jury  intend  to  award  to  the  successful  party,  in  money,^  with 
certainty.  It  is  safest  and  most  prudent  to  specify  the  exact 
amount.^  It  will,  however,  be  deemed  certain  if  it  can  be  ren- 
dered so  by  reference  to  the  facts  established  by  the  record  or 
"found  by  the  jury.  If  the  jury  find  aU  the  necessary  data,  so 
that,  by  mere  arithmetical  calculation,  the  amount  can  be  deter- 
mined, the  verdict  is  certain,  and  will  support  a  judgment  for 
the  amount  so  ascertained.'  ' 


1  Shell  V.  Sanders,  46  Ga.  469. 

2  Darden  v.  Mathews,  23  Tex.  320, 

3  Phillips  V.  Behn,  19  Ga.  298; 
Beckwith  v.  Carletou,  14  Ga.  691; 
Burton  v.  Anderson,  1  Tex.  93; 
James  v.  Wilson,  7  Tex.  230;  Mays 
V.  Lewis,  4  Tex.  38;  Sacrest  v.  Jones, 
30  Tex.  596;  Miller  v.  Shackelford, 
4  Dana,  271;  McGregor  v.  Armill, 
2  Iowa,  30;  Gibson  v.  Lewis,  27  Mo. 
532;  Guff  v.  Hutchinson,  38  Ind.  341; 
Freis  v.  Mack,  33  Oliio  St.  52;  Jack- 
son V.  Jackson,  47  Ga.  99;  Brannin 
V.  Forees,  12  B.  Mon.  506.  In 
Darden  v.  Mathews,  22  Tex.  320,  the 
action  was  on  a  note,  and  this  was 
the  verdict:  "  We,  the  jury,  find  for 
the  plaintiff  a  judgment  for  the 
amount  due  on  said  note,  with  legal 
interest,  less  the  sum  of  $51,  and  the 
interest  on  the  same  from  January, 
1856."  The  court  held  that  the  day 
of  the  verdict  is  fixed  by  the  record; 
the  legal  interest  defined  by  the 
statute;  and  the  uncertainty  of 
"January,  1856,"  was  to  be  resolved 
most  strongly  against  the  party 
claiming  under  the  verdict;  that  the 
ascertainment  of  the  amount  was  a 
mere  mathematical  calculation,  and 
could  be  rendered  certain  if  "said 
note  "  refers  to  the  note  in  the  peti- 
tion. Roberts,  J.,  said:  "The  ob- 
ject of  a  verdict  is  to  announce  to 
the  court  the  judgment  of  the  jury, 
as  to  how  far  the  facts,  established 


by  the  evidence,  conform  to  those 
which  are  alleged  and  put  in  issue 
by  the  pleadings.  As  the  facts,  thus 
declared,  constitute  the  basis  of  a 
judgment  (which  is  but  the  legal 
consequence  of  the  facts  thus 
found),  it  follows  that  the  verdict 
must  either  affirm  or  negative  such 
of  the  disputed  facts  as  wiU,  in  con- 
nection with  those  admitted,  if  any, 
support  a  legal  judgment.  A  special 
verdict  reiterates  the  facts  alleged, 
of  which  the  jury  have  had  proof, 
in  such  manner  as  to  indicate  their 
judgment  upon  them.  A  general 
verdict  is  defined  to  be  '  a  finding  by 
the  jury,  in  the  terms  of  the  issue  or 
issues  submitted  to  them;  and  it  is, 
wholly  or  in  part,  for  the  plaintiff  or 
defendant.'  2  Tidd's  Pr.  869.  In 
its  most  general  form  it  is,  '  We, 
the  jury,  find  for  the  plaintiff.' 
That  is,  they  find  the  issue,  the  ma- 
terial facts  in  dispute,  as  presented 
in  the  pleadings,  in  favor  of  the 
plaintiff.  It  is  only  by  understand- 
ing this  general  expression,  in  con- 
nection with,  and  as  a  response  to, 
the  issue,  as  formed  by  the  plead- 
ings, that  it  can  be  held  to  amount 
to  any  declaration  of  facts.  The 
jury,  therefore,  must  be  presumed 
to  have  expressed  their  finding  with 
reference  to  the  facts  in  the  plead- 
ings, unless  they  also  state  some- 
thing which  shows  that  such  was 


VEEDICT   AJSTD   JUDGMENT. 


817 


If  tlie  verdict  does  not  find  the  facts  upon  Avliich  the 
calculation  of  damages  depends,  according  to  the  issue,  nor  the 
amount  of  damages  themselves,  it  is  fatally  defective.  Thus, 
in  an  action  for  the  conversion  of  personal  property,  the  jury 
found  for  the  plaintiff,  and,  instead  of  assessing  his  damages, 


not  their  intention.  As,  for  in- 
stance, where  the  jury  found  for  the 
X)laintiff,  '  the  amount  of  the  note 
adduced; '  because,  by  the  word 
'  adduced,'  they  plainly  showed 
that  they  had  reference,  not  to  the 
facts  alleged,  but  to  the  facts  in  evi- 
dence. Smith  V.  Johnson,  8  Tex. 
418.  There  is  no  such  expression  in 
this  case,  to  prevent  tlie  usual  pre- 
sumption from  being  indulged.  Tliis 
general  verdict,  *  We,  the  jury, 
find  for  the  plaintiff,'  will  often  be 
sujBficient.  In  such  cases,  its  impoi't 
would  be,  that  aU  the  material  facts 
alleged  by  the  plaintiff,  that  were 
put  in  issue,  are  established.  It  is 
difficult  to  see,  on  principle,  why 
this  general  verdict  would  not  be  all 
that  was  necessary,  in  an  action 
upon  a  note  where  the  general  issue 
alone  was  pleaded,  and  where  there 
were  no  payments,  off -sets,  or  other 
facts  established,  changing  the 
amount  to  be  recovered,  and  mak- 
ing it  different  from  that  claimed  in 
the  petition.  AU  the  facts,  as  to 
the  amoiint  promised,  time  of  pay- 
ment, etc.,  must  be  specifically  set 
forth,  just  as  they  are  in  the  note; 
and  intei'est,  whether  stipulated  in 
the  note  or  not,  follows  as  a 
legal  consequence.  Hart.  Dig.  arts. 
1606-8. 

"  In  the  English  courts  a  different 
practice  has  prevailed,  which  renders 
it  necessary  for  the  jury  to  find 
interest;  because  tliey  treated  in- 
terest not  as  a  legal  consequence,  but 
as  damages,  to  be  allowed  or  not, 
according  to  the  discretion  of  the 
jury.  2  Tidd's  Pr.  873.  In  actions 
Vol.  1  —  52 


sounding  in  damages;  and  in  actions 
where  damages  may  be  recovered 
incidentally;  and  in  all  actions,  of 
whatsoever  character,  where  dates, 
amounts,  and  the  like,  are  not  usually 
intended  or  understood  to  be  stated 
accurately,  and  need  not  be  proved 
as  stated,  there  sliould  not  only  be 
the  general  finding  for  the  plaintiff, 
but  also  a  special  finding  as  to  the 
amount.  So,  too,  as  in  this  case, 
where  payments,  off-sets,  or  other 
matter,  is  pleaded  and  established, 
which  reduces  the  amount  of  recov- 
ery below  the  amount  clamied  in 
the  petition,  the  amount  of  the  re- 
duction should,  in  some  way,  be  in- 
dicated by  a  special  finding."  But 
see  Educational  Association,  etc.  v. 
Hitchcock,  4  Kan.  36;  Parker  v.. 
Fisher,  39  111.  164. 

Dozier  v,  Jarman,  30  Mo.  216,  is 
an  instance  of  a  strict  constiaiction 
of  a  verdict;  and  probably  is  more 
strict  than  is  warranted  by  the  au- 
thorities generally. 

It  was  an  action  to  recover  dam- 
ages for  a  wrong  sale  caused  to  be 
made  by  the  defendant.  The  jury 
found  a  verdict  against  him  for 
$5,253,  with  interest  from  the  day  of 
sale.  After  discharge  of  tlie  jury, 
the  court  caused  the  interest  to  be 
computed,  and  included  it  in  the 
judgment  on  the  verdict. 

The  court  say:  "  The  action  is  one 
sounding  in  damages,  and  the 
amount  of  damages  was  specifically 
found  by  the  jury;  upon  which  in- 
terest, eo  nomine,  was  given  in 
addition.  Interest  is  recoverable,  as 
a  matter  of  law,  either  by  reason  of 


818 


PLEADING   AND   PKOCEDURE. 


determined  the  value  of  the  property  "  to  U  $6,308."  It  was 
held  uncertain  because,  on  the  language  of  the  verdict,  the 
court  could  not  assume  that  the  jury  intended  to  fix  the  yalue 
at  the  time  of  the  conversion.^  If  the  declaration  does  not 
state  precisely  the  plaintiff's  demand,  a  verdict  for  the  amount 
claimed,  not  stating  it,  will  be  insufficient.  In  such  a  case,  the 
data  for  computing  the  amount  is  not  in  the  record.^ 

A  verdict  is  insufficient  to  sustain  a  judgment  if  it  cannot  be 
made  certain  as  to  amount  without  looking  out  of  the  record 
to  the  evidence  given  on  the  trial.'* 


an  express  contract  to  pay  it,  or 
because  it  is  recoverable  as  damages 
which  the  party  is  legally  bound  to 
pay  for  the  detention  of  money  or 
property  improperly  withheld;  and 
where  it  is  imposed  to  punish  negli- 
gent, tortious  or  fraudulent  conduct, 
it  rests  in  the  pleasure  of  the  jury, 
and  is  given  as  damages.  Sedg.  on 
Dam. 

"The  general  rule  undoubtedly  is, 
that  interest  is  not  recoverable  on 
unliquidated  damages,  or  for  an  un- 
certain demand;  and  whenever  it  is 
allowable,  as  in  trover  or  trespass, 
for  converting  or  taking  goods — in 
which  the  measure  of  damages  is  in 
general  the  value  of  the  property  at 
the  time  of  the  taking  or  conversion, 
with  interest  —  the  interest  is  not 
recoverable,  as  such,  in  addition  to 
the  damages  assessed  by  the  jury, 
but  must  enter  into  the  estimate  of 
and  be  found  as  part  of  the  damage 
itself." 

1  Knickerbocker,  etc.  M.  Co.  v. 
Hull,  3  Nev.  194. 

2  Neville  v  Northcott,  7  Cold.  294; 
Gerhab  v.  White,  40  N.  J.  L.  242. 

3  Fries  v.  Mack,  33  Ohio  St.  52; 
Mays  V.  Lewis,  4  Tex.  38;  Claiborne 
V.  Tanner,  IS  Tex.  68;  Fromme  v. 
Jones,  13  Iowa,  474;  Smith  v. 
Tucker,  25  Tex.  594.  In  Fries  v. 
Mack,  supra,  the  action  was  brought 
on  a  judgment.     This  was  the  ver- 


dict: "We,  the  jury,  do  find  for 
the  plaintiff  $7,000  and  interest  from 
the  maturity  of  the  seven  notes  of 
^1,000  each,  given  Fehniary  2, 1860, 
up  to  March  2,  1874."  The  question 
was  as  to  adding  interest  to  the 
$7,000.  The  court  say:  "The  ac- 
tion is  not  brought  upon  promissory 
notes;  nor  were  any  such  notes  re- 
ferred to  in  the  pleadings,  and  the 
verdict  neither  gives  copies  of  them 
nor  states  the  times  at  which  they 
are  respectively  payable.  Was  it, 
then,  within  the  province  of  the 
court  to  identify  the  notes  referred 
to  by  the  jury,  and  ascertain  the 
times  when  they  severally  matured, 
by  reference  to  the  evidence  offered 
on  the  trial  ?  We  are  constrained  to 
answer  this  question  in  the  nega- 
tive. The  facts  found  by  the  court 
(in  thus  identifying  the  notes, 
comxiuting  the  interest  thereon, 
and  entering  judgment  accordingly) 
formed  no  part  of  the  record,  and 
were  found  only  from  the  memory 
or  minutes  of  the  judge  who  tried 
the  case.  Without  a  knowledge  of 
these  facts,  no  one  could  tell  from 
the  verdict,  considered  per  se,  or  in 
connection  with  the  record,  from 
what  time  the  jury  intended  the 
computation  of  interest  to  com- 
mence. 

"The  court  found  from  the  facts 
outside  of  the  record  that  the  jury 


VEKDICT   AND    JUDGMENT. 


819 


If  the  Ycrclict  goes  beyond  the  issue  raised  by  the  pleadings, 
and  passes  upon  an  extraneous  fact,  or  contains  any  redundant 
statement,  it  may  be  rejected  as  surphTsage,  and  will  not 
vitiate  the  verdict  if  it  is  otherwise  sufficient ;  ^  unless  the  ad- 
dition clearly  shows  that  the  jury  reasoned  incorrectly  or  from 
false  premises.^ 

Genekae  verdict  where  there  are  several  counts. —  If 
there  is  a  distinct  and  separate  cause  of  action  stated  in  each  of 
several  counts,  one  of  which  is  defective,  and  a  general  verdict 
given  upon  evidence  applicable  to  all,  it  cannot  be  known  that 
the  verdict  is  not  based  in  part  on  the  bad  count.''     For  this 


intended  by  their  verdict  to  refer  to 
certain  notes  which  had  been 
offered  in  evidence  upon  the  trial. 
Perhaps  they  did  so  intend,  though 
the  verdict  does  not  say  so.  The 
facts  found  in  regard  to  it  are 
neither  expressed  nor  necessarily 
implied  in  its  language.  .  .  .  The 
judgment  should  follow  as  a  logical 
sequence  from  the  issues  of  fact  de- 
clared by  the  pleadings  and  the  find- 
ings of  the  jury  thereon.  If  the 
judgment  is  waiTanted  by  the 
pleadings  and  verdict,  it  should  be 
sustained;  but  if  it  has  no  such 
basis,  it  cannot  be  supported."  Wells 
V.  Cox,  1  Daly,  515,  must  be  doubted 
on  the  test  of  the  foregoing  case, 
which  undoubtedly  lays  down  the 
correct  rule.  On  the  trial  the  court 
charged  the  jury  that  if  their  find- 
ing was  in  favor  of  the  plaintiff,  the 
amount  due  him  was  $616.29.  The 
jury  found  for  the  plaintiff,  "for 
the  whole  amount  claimed  and  in- 
terest." After  discharge  of  the  jury, 
the  court,  on  motion,  supported  by 
the  court's  memory  of  its  charge 
and  affidavits  of  the  intention  of 
the  jury,  con-ected  the  verdict  by 
inserting  the  sum  stated  in  the 
charge. 

1  Marguard  v.  AVheeler,  52  Cal. 
445;  Watson  v.  San.  F.  etc.  R.  R.  Co. 
50  Cal.  523;  Patochi  v.  Central  Pa- 


cific R.  R.  Co.  52  Cal.  90;  Dunlap  v. 
Hayden,  29  Ind.  303;  Ranney  v. 
Bader,  48  Mo.  539.  Where  a  jury 
returned  a  verdict  for  plaintiff  "  for 
$51.60,  subject  to  an  offset  of 
$26.80,  if  said  offset  had  not  al- 
ready been  paid;  but  if  it  had  been 
paid,  then  for  $51.60  without  off- 
set," held  proper  to  render  judg- 
ment for  $51.60,  and  to  reject  the 
balance  as  surplusage.  The  court  , 
say:  "It  in  no  way  appears  from^ 
the  verdict  whether  it  ('offset')  had 
been  paid  or  not,  and  therefore  it  is 
the  same  as  if  the  verdict  said  noth- 
ing about  it."  Surplusage  does  not 
vitiate.  Hawkins  v.  House,  65  N, 
C.  614;  Wills  v.  Garland,  2  Va.  Ca. 
471;  Wendham  V.  Williams,  27  Miss, 
313;  Patterson  v.  U.  S.  2  Wheat. 
222;  Duane  v.  Simmons,  4  Yeates, 
441;  Longacre  v.  State,  3  Miss.  (2 
How.)  637;  Gever  v.  Turner,  28  Md. 
600;  Baker  v.  CaUender,  6  Mass.  303. 

2  Gregory  v.  Frotliiugliam,  1  Nev, 
253. 

3  Eddowes  v.  Hopkins,  1  Doug.  377; 
Holt  V.  Scholefield,  6  T.  R.  691; 
Empson  v.  Griffin,  11  A.  &  E.  186. 
In  Kline  v.  Wood,  9  S.  &  R.  294.  it 
was  held  that  if  a  general  verdict  is 
given,  and  some  of  the  counts  are 
for  matters  without  the  jurisdiction 
of  the  court,  the  verdict  is  bad  for 
tlie  whole. 


820 


PLEADING   AND   PKOCEDTJKE. 


reason,  it  is  a  general  rule,  that  where  a  general  verdict  is  given 
upon  several  counts,  and  one  of  them  is  not  good,  the  judgment 
will  be  arrested  or  reversed  on  error.^  But  where  it  appears 
that  there  was  but  one  cause  of  action  stated  in  the  declaration, 
or,  what  comes  to  the  same  result,  that  all  the  evidence  was  ap- 
plicable to  the  good  counts,  the  verdict  may  be  amended  so  as 
to  apply  only  to  them.^ 

A  similar  question  arises  where,  in  a  single  count,  a  demand 
is  declared  for  the  whole  of  which  the  plaintiff  is  not  entitled 
to,  or  where  two  or  more  breaches  of  a  contract  are  assigned, 
one  of  which  is  insufficient  to  sustain  a  clahn.  of  damages.  On 
such  a  count  a  general  verdict  cannot  be  sustained.^  Where  it 
is  positively  and  expressly  averred  that  the  plaintiff  has  sus- 
tained damage  from  a  cause  subsequent  to  the  commencement 
of  the  action,  or  previous  to  the  plaintiff  having  any  right  of 
action,  and  the  jury  give  entire  damages,  judgment  will  be  ar- 
rested ;  but  where  the  cause  of  action  is  properly  laid,  and  the 
otlier  matter  either  comes  under  scilicet,  or  is  void,  insensible  or 
impossible ;  and,  therefore,  it  cannot  be  intended  that  the  jury 


iHarker  v.  Orr,  10  AVatts,  245; 
Paul  V.  Harden,  9  S.  &  R.  23;  Union 
Turnpike  Co.  v.  Jenkins,  1  Caines, 
381;  Highland  Turnpike  Co.  v,  Mc- 
Kean,  11  John.  98;  Dutchess  County 
M.  Co.  V.  Davis,  14  John.  238;  Stev- 
enson V.  Newnham,  18  C-  B.  285; 
Trevor  v  WaU,  1  T.  R.  151;  Han- 
cock V.  Haywood,  8  T.  R.  438;  Grant 
V.  Astle,  2  Doug.  728;  Holt  v.  Schole- 
field,  6  T.  R.  691;  Skeen  v.  Rickie,  5 
M.  &  W.  175;  Chad  wick  v.  Trower, 
6  Bing.  N.  C.  1. 

2  Union  Turnpike  Co.  v.  Jenkins, 
supra;  Aldrich  v.  Lyman,  6  R.  I.  98; 
Cooper  V.  BisseU,  15  John.  318; 
Grant  v.  Astle,  2  Doug.  723;  Staf- 
ford V.  Green,  1  John.  505;  Sayre  v. 
Jewett,  12  Wend.  185;  Norris  v. 
Durham,  9  Cow.  151;  Barnard  v. 
Whiting,  7  Mass.  358;  Barnes  v. 
Hurd,  11  Mass.  57;  Patton  v.  Ganiey, 
17  Mass.  187;  Smith  v.  Cleveland,  6 
Met.  332;  Peny  v.  Boilean,  10  S.  & 
R.  208;  Smith  v.  Latour,  18  Pa.  St. 
243;  CornwaU  v.  Gould,  4  Pick.  444; 


Baker  v.  Sanderson,  3  Pick.  348; 
West  V.  Piatt,  127  Mass.  867;  Emblin 
V.  Dartnell,  12  M.  &  W.  880. 

In  Clarke  v.  Lamb,  6  Pick.  512;  S. 
C.  8  Pick.  415,  it  was  held  that  when 
there  are  two  or  more  issues,  and  the 
verdict  is  perfect  as  to  some,  but 
silent  as  to  others,  the  verdict  is 
amendable,  if  by  the  certificate  of 
the  judge,  it  shall  appear  that  there 
was  no  other  matter  in  trial,  except, 
what  is  embraced  in  the  issues  on 
which  the  verdict  is  sufficient;  and 
correction  may  be  made  even  pending 
a  wi-it  of  error.  Petre  v.  Hannay, 
8  T.  R.  659;  Jones  v.  Kennedy,  11 
Pick.  125. 

3  Leach  v.  Thomas,  2  M.  &  W. 
427;  Sherry  V.  Frecking,  4Duer,  452 
Gordon  v.  Kennedy,  2  Binney,  287 
Paley  v.  Osborne,  10  Coke,  130b 
Lloyd  V.  Morris,  Willes,  443;  Talbot 
V.  Herndon,  4  J.  J.  Marsh.  553;  Van 
Rensselaer  v.  Platner,  2  John.  Cas. 
17. 


VEKDICT   AND   JUDGMENT. 


831 


ever  had  it  under  their  consideration,  the  plaintiff  will  be 
entitled  to  his  judgment.^ 

"Where  part  of  the  special  damage  laid  in  the  declaration  did 
not  fall  strictly  within  the  covenant  alleged  to  be  broken,  it  was 
held  to  be  presumed,  after  verdict,  that  the  jury  were  directed 
at  the  trial  not'to  take  that  part  into  their  consideration.-  In  the 
opinion  of  the  court,  there  is  a  difference  between  an  affirmative 
allegation  of  facts  which  would  exclude  a  part  of  the  damages 
declared  for,  and  the  absence  of  an  averment  necessary  to  make 
out  title  to  a  part. 

If  a  claim  of  damages  is  made  up  of  good  and  bad  items,  and 
there  is  a  general  verdict  for  the  plaintiff,  it  will  be  intended,  on 
a  motion  in  arrest  of  judgment,  that  the  verdict  was  given 
only  for  the  good  ones.^ 

In  Connecticut,  Ohio,  South  Carolina,  and  by  statute  in 
several  other  states,  if  there  is  one  good  count  in  the  declara- 
tion, a  general  verdict  which  is  responsive  to  the  issue  on  it,  is 


1  Williams'  note  to  Hamilton  v, 
Vere,  2  Saund.  1715;  Secklemore  v. 
Thistleton,  6  M.  &  S.  9;  Gordon  v. 
Kennedy,  supra. 

2  Campbell  v.  Lewis,  3  B.  &  Aid. 
392. 

3  Edwards  v.  Reynolds,  Hill  &  D. 
Supp.  53;  Doe  d.  Lawrie  v.  Dyeball, 
8  B.  &  C.  70;  Kitchenman  v.  Skeel, 
3  Exch.  49;  Steele  v.  Western  I.  L. 
N.  Co.  2  John.  383.  The  case  of 
Sheen  v.  Rickie,  5  M.  &  W.  175,  does 
not  appear  to  be  consistent  with  the 
foregoing  cases.  Trover  was  brought 
for  the  conversion  of  chattels  and 
fixtures.  The  court,  by  construction 
of  the  declaration,  relieved  it  of  the 
objection  that  suit  was  brought  for 
fixtures  annexed;  but  gave  opinion 
of  the  effect  of  a  general  verdict  in 
favor  of  the  plaintiff,  had  the  prop- 
erty indicated  by  the  word  "fix- 
tures "  been  technically  such.  Parke, 
B.,  said:  "If  it  distinctly  appeared 
on  the  face  of  the  declaration  tliat 
part  of  tlie  cause  of  action  was  such 
as  could  not  be  recovered  in  trover, 


I  should  be  strongly  disposed  to  agree 
in  the  objection.  The  case  would  be 
easily  distingiiished  from  that  which 
has  been  put,  of  an  action  for  words, 
some  of  which  are  not  actionable; 
there  the  court  would  presume  that 
the  non-actionable  words  were  not 
intended  to  constitute  the  cause  of 
action,  but  was  used  merely  as  mat- 
ter of  aggravation,  or  of  explanation. 
Although,  when  the  words  were 
spoken  at  different  times,  and  some 
of  them  were  not  actionable,  the 
judgment  would  be  arrested.  The 
law  is  so  laid  down  in  the  case  of 
Penson  v.  Gooday,  Cro.  Car.  327.  If, 
therefore,  it  had  been  clear  that  this 
declaration  contained  two  distinct 
causes  of  action,  for  one  of  which 
trover  could  not  be  maintained,  then, 
as  general  damages  have  been  as- 
sessed upon  the  whole  declaration, 
there  must  either  be  an  arrest  of 
judgment  or  a  venire  de  novo." 
Griffiths  V.  Lewis,  8  Q.  B.  841;  Alfred 
V.  Farrow,  id.  854. 


822 


PLEADING    AInD    PP.OCEDUEE. 


good,  and  not  vitiated  by  there  being  another  count  which  is 
bad,^  Where  there  are  several  counts  or  causes  of  action,  a 
verdict  may  be  taken  separately  on  each ;  and  that  is  a  prudent 
course  to  take.  Then,  if  either  is  bad,  the  objection  may  prevail 
without  prejudice  to  the  verdict  on  the  good  counts.^ 

Where  theee  aee  several  parties. —  Where  there  are  sev- 
eral plaintiffs  it  is  not  competent  for  the  jury  to  find  against  one 
and  in  favor  of  another.''  Every  action  at  law  must  be  main- 
tained in  favor  of  all  the  plaintiffs,  or  it  will  fail  as  to  all. 

It  has  already  been  stated,  that  where  there  are  several  de- 
fendants, and  there  is  a  default  as  to  one,  and  an  issue  as  to 
others,  there  is  but  one  assessment  of  damages  as  to  all.  Under 
the  old  practice,  the  jury  were  called  as  well  to  try  the  issue  as 
to  inquire  of  the  damages.*  In  actions  ex  contractu,  if  those 
who  plead  succeed  otherwise  than  upon  grounds  of  personal  dis- 
charge, at  most  only  nominal  damages  can  be  given  against  the 
defaulted  party.^ 


1  Walcott  V.  Coleman,  2  Conn.  324; 
Smith  V.  Hawkins,  6  Conn.  444; 
Graves  v.  WaUer,  19  Conn.  90;  John- 
son V.  Mullen,  12  Ohio,  10;  Chisern 
V.  School  Directors,  19  Ohio,  289; 
Pratt  V.  Thomas,  2  Hill  (S.  C),  654; 
Taylor  v.  Sturgingger,  2  Mills'  Const. 
307;  Neal  v.  Lewis,  2  Bay,  204;  Neil- 
son  V.  Emerson,  2  Bay,  439;  Ander- 
son V.  Simple,  7  111.  455;  Frankfort 
Bridge  Co.  v.  Williams,  9  Dana,  403; 
Scott  V.  Peebles,  3  Sm.  &  M.  546; 
Cowdi'en  v.  Gardner,  1  J.  J.  Marsh. 
589;  Peoria,  etc.  Ins.  Co.  v.  White- 
hill,  25  111.  466;  Newell  v.  Downs,  8 
Blackf.  523.  See  Hudson  v.  Matth- 
ews, Morris,  94. 

^  Hayter  v.  Moat,  2  M.  &  W.  56; 
Mooney  v.  Kennett,  19  Mo.  551; 
Clark  V.  Hannibal,  etc.  R.  R.  Co.  36 
Mo.  202. 

sBuchhanan  v.  Gamble,  Ga.  Dec. 
156. 

4Tidd'sPr.  802-3;  1  Burr.  Pr.  372; 
H.u-t  V.  De  Lord,  17  John.  270;  Cud- 
derback  v.    Fauely,    2  Wend.    624; 


Van  Schaick  v.  Trotter,  6  Cow.  599; 
Slay  ton  v  Smith,  2  Bosw.  673;  Cat- 
lin  V.  Latsou,  4  Abb.  248. 

SGerrish  v.  Cummings,  4  Cush. 
391;  Ferguson  v.  State  Bank,  11  Ark. 
512;  Braton  v,  Gregory,  8  Ark.  177. 
In  WiUiams  v.  McFaU,  2  S.  &  R. 
280,  assumpsit  was  brought  against 
two  upon  a  joint  contract.  One  of 
the  defendants  confessed  judgment 
for  a  certain  sum,  and  the  othei- 
I)leaded  the  general  issue,  went  to 
trial,  and  a  verdict  passed  against 
him  for  a  smaller  sum.  It  was  held 
that  judgment  could  not  be  entered 
on  the  verdict,  nor  for  such  defend- 
ant, but  that  the  judgment  con- 
fessed would  stand  against  the  party 
who  confessed  it.  The  entry  of 
judgment,  or  the  confession,  pre- 
cluded the  entry  of  another  judg- 
ment against  the  other  defendants; 
for  two  judgments  final  could  not  be 
entered  in  the  same  action  on  a 
joint  claim. 


VEKDICT   AND   JUDGMENT.  S23 

In  actions  upon  torts,  the  acquittal  of  one  does  not  generally 
affect  the  plaintiff's  right  of  action  against  another.  In  such 
actions,  one  defendant  raa};^  be  found  guilty  and  another  acquit- 
ted. So,  where  one  defendant  is  defaulted,  and  others  defend, 
there  may  be  an  assessment  of  damages  against  the  former, 
though  the  parties  who  plead  are  found  not  guilty,  or  are  other- 
wise discharged.  Thus,  in  an  early  case,  trespass  was  brought 
against  six  defendants;  three  of  them  suffered  judgment  by 
default;  the  other  three  pleaded  not  guilty.  On  the  trial,  it 
appearing,  by  the  evidence,  that  the  trespass  was  committed 
after  the  action  was  brought,  the  three  who  pleaded  were  ac- 
quitted ;  but  damages  were  assessed  against  the  otliers.^  So  if 
they  plead  different  pleas,  one  may  be  found  guilty  and  the 
others  acquitted.^  If  sued  separately,  recovery  may  be  had 
against  each.  A  judgment  against  one  cannot  be  pleaded  in  bar 
of  a  recovery  against  another,  unless  the  judgment  has  been  sat- 
isfied.^ But  where  the  action  is  against  several,  and  one  is  de- 
faulted, and  the  others  plead  such  defense  that  on  a  verdict  in 
their  favor  the  record  will  show  that  the  plaintiff  had  no  cause 
of  action  against  any  of  the  defendants,  he  wiU  not  be  entitled 
to  judgment  against  the  parties  in  default ;  and  it  will  be  the 
same  as  to  one  found  guilty  on  a  different  plea.* 

In  a  joint  action  against  several  for  trespass  or  other  tort,  if 
aU  are  found  guilty,  entire  or  joint  damages  must  be  assessed 
against  them.^  All  the  legal  consequences  of  being  jointly 
guilty  must  necessarily  follow;  of  which  one  is,  that  each  is 
hable  for  all  the  damages  which  the  plaintiff  has  sustained, 
without  regard  to  different  degrees  or  shades  of  guilt.^  The 
jur}^  are  to  estimate  the  damages  against  all  the  defendants,  if 
guilty,  according  to  the  amount  which  they  think  the  most  cul- 

1  Jones  V.  Harris,  3  Str.  1108,  Fuller  t.  Chamberlain,  11  Met.  503 

2Mayler  v.  AylLffe,  Cro.  Jac.  134.  Jones  v.  Grimmett,  4  W.  Va.  104 

SMcGee  v.   Overley,  12  Ai'k.  164;  Crawford    v.   Morris,    5    Gratt.    90 

Amononett    v.    Harris,    1    Hen.  &  Bohan  v.  Taylor,  6Cow.  313;  Wake- 

Munf.  488.  ley  v.  Hart,  6  Binney,  316;  Bostwick 

'*Mayler  v.  Ayliffe,  supra;  Biggs  v.  v.  Lewis,  1  Day,  34;  Mitchell  v.  Mil- 

Benger,   2  Ld.  Raym.  1372;  Briggs  bank,  6  T.  R.  199;  Hill  v.  GoodchilJ, 

V.  Greinfield,  1  Str.  610.  5  Burr.  2790. 
sHalsey  v.  Woodruff,  9  Pick,  555;         tiHalsey  v.  Woodraff,  supra. 


824 


PLEADING   AUD   PKOCEDUKE. 


pable  of  the  defendants  should  pay.*  It  is  irregular,  in  such  a 
case;  on  finding  those  jointly  charged  jointly  guilty,  to  assess 
damages  against  them  separately,  even  though  they  severed  in 
pleading.^ 


1  Clark  V.  Bales,  15  Ark.  452; 
Hardy  v.  Broadus,  35  Tex.  606; 
Crawford  v.  Morris,  supra;  Hair  v. 
Little,  28  Ala.  236;  Beal  v.  Finch,  11 
N.  Y.  128.  In  Clark  v.  Newsam,  1 
Excli.  131,  it  was  held  that  where 
two  persons  were  jointly  sued  for 
false  imprisonment,  one  of  whom 
has  acted  from  improper  motives, 
the  damages  ought  not  to  be  assessed 
with  reference  to  the  act  and  the 
motives  of  the  most  guilty,  or  the 
most  innocent  party;  but  the  true 
criterion  of  damages  is  the  whole 
injury  which  the  plaintiff  has  sus- 
tained from  the  joint  act.  Comj)are 
Hall  V.  Little,  supra. 

2Callisou  V.  Lemons,  2  Port.  145; 
O'Shea  v.  Kirker,  8  Abb.  69;  St. 
Louis,  etc.  K.  R.  Co.  v.  South,  43 
111.  176;  Weakly  v.  Rogers,  3  Watts, 
460;  Tyrrell  v.  Lockhart,  3  Blackf. 
136;  Palmer  v.  Crosby,  1  Blackf. 
139;  Ridge  v.  Wilson,  1  Blackf.  409; 
Mitchell  v.  Milbank,  6  T.  R.  199; 
Bohan  v.  Taylor,  6  Cow.  313;  Wakely 
v.  Hart,  0  Binney,  316.  In  HiU  v. 
Goodchild,  5  Burr.  2790,  Lord  Mans- 
field said:  "We  hold  that  as  the 
trespass  is  jointly  charged  upon  both 
defendants,  and  the  verdict  has 
found  them  both  jointly  guilty,  the 
jury  could  not  afterward  assess  sev- 
eral damages.  We  do  not  think 
that  the  present  case  calls  for  an 
opinion  upon  those  cases  where  the 
defendants  are  charged  jointly  and 
severally;  where  the  defendants 
plead  severally,  or  where  the  de- 
fendants are  found  guilty  of  several 
parts  of  the  same  trespass,  or  at  a 
different  time;  or  where  a  joint 
action  is  brought  for  two  several 


trespasses,  and  the  damages  found 
severally,  as  being  severally  guilty. 
We  don't  meddle  with  any  of  these 
cases;  there  is  a  variety  of  opinions 
in  the  books  relating  to  them." 

The  report  of  Hey  don's  Case,  11 
Coke,  5a,  states  that  "  A  great  ques- 
tion was  moved  and  depended  for 
divers  terms,  how  and  against  whom, 
and  for  what  damages,  judgment 
should  be  entered.  And  at  last  upon 
consideration  had  of  the  precedents, 
and  of  our  books,  it  was  resolved 
per  totam  curiam:  1.  That  when  in 
trespass  against  divers  defendants, 
they  lilead  not  guilty,  on  several 
pleas,  and  the  jury  find  for  the 
plaintiff  in  all,  the  jurors  cannot  as- 
sess several  damages  against  the  de- 
fendants, because  all  is  one  trespass, 
and  made  joint  by  the  plaintiff,  by 
his  writ  and  declaration;  and  al- 
though one  of  them  is  more  mali- 
cious, and  de  facto  doth  more  and 
greater  wrong  tlian  the  others,  yet 
all  coming  to  do  an  unlawful  act, 
and  of  one  party,  the  act  of  one  is 
the  act  of  all  of  the  same  party 
being  present.  ...  In  trespass 
against  two,  if  the  jury  find  one  at 
one  time,  and  the  other  at  another 
time,  there  several  damages  may  be 
taxed;  but  if  the  plaintiff,  himself, 
confesses  that  they  committed  the 
trespass  severally,  there  the  writ  shall 
abate;  and  so  there  is  a  difference 
between  finding  by  verdict,  and  con- 
fession of  the  party.  Also  there  is 
a  difference  betwixt  an  express  con- 
fession, and  not  gainsaying. 

"  2.  In  trespass  against  two,  where 
one  comes  and  appears,  etc. ,  against 
whom  the  plaintiff  declares  simul 


VERDICT    AND    JUDGMENT. 


825 


!N"otwithstanding  this  rule,  juries  have  frequently  severed  the 
damages,  aiming,  no  doubt,  to  apportion  them  according  to  the 
culpability  of  the  respective  defendants ;  and  in  South  Carolina 
juries  are  permitted,  in  their  discretion,  to  do  so ;  ^  elsewhere  it 
is  irregular ;  but  the  irregularity  may  be  cured  by  the  plaintiff 
entering  a  nolle  prosequi  as  to  all  the  defendants  but  one,  and 
taking  judgment  against  him  only;  and  he  may  elect  to  enter 
judgment  for  the  best  damages ;  ^  or,  according  to  some  cases, 


cum,  etc.,  who  pleads  and  is  found 
guilty  by  the  inquest  to  damages, 
and  afterwards  the  other  comes  and 
pleads,  and  is  found  guilty;  the  de- 
fendant who  pleaded  last  shall  be 
charged  with  tlie  damages  taxed  by 
the  former  inquest;  for  the  trespass 
which  the  plaintiff  has  made  joint 
by  his  writ  and  declaration,  and 
done  at  one  time,  cannot  be  severed 
by  the  jury,  if  the  jury  find  the 
trespass  to  be  done  by  all  at  one  and 
the  same  time,  as  the  plaintiff  hath 
supposed.  Against  which  it  was  ob- 
jected that  it  might  be  mischievous 
to  the  defendant  who  last  pleads; 
for  excessive  damages,  by  consent 
between  the  plaintiff  and  the  first 
defendant,  may  be  found,  with 
which  the  second  defendant  shall  be 
charged;  and  he  shall  have  no  rem- 
edy to  relieve  himself  by  attaint,  in- 
asmuch as  he  is  a  mere  stranger  to 
the  issue,  upon  the  trial  whereof 
the  damages  were  assessed.  But  it 
was  resolved  that  in  such  case  he 
should  have  attaint ;  for  although  he 
is  a  stranger  to  the  issue,  yet,  be- 
cause by  the  law  he  is  privy  to  the 
charge,  he  shall  have  attaint.    .    .    . 

"4.  In  the  case  at  bar,  for  as  much 
as  in  judgment  of  law  the  several 
juries  gave  a  verdict  all  at  one  and  the 
same  time,  the  plaintiff  may  have 
election  to  have  judgment  de  meli- 
oribus  damnis,  by  any  of  the  in- 
quests, and  it  shall  bind  all;  hut  fiat 
nisi  unica  executio.     ,     .    . 

"5.  Where,  in  trespass,  the  defend- 


ants plead  several  pleas,  all  triable  by 
one  and  the  same  jury,  and  both  the 
issues  are  found  for  the  plaintiff, 
the  jury  cannot  sever  the  damages; 
and  if  they  do,  the  whole  verdict  is 
vicious." 

In  Player  v.  Warn,  Cro.  Car.  54,  it 
was  held  in  an  action  of  trover 
against  two,  that  the  jury  might 
find  the  defendants  severally  guilty 
as  to  part  of  the  property,  and  not 
guilty  as  to  the  residue. 

In  Turner  v.  McCarthy,  4  E.  D. 
Smith,  250,  it  was  held  this  could 
not  be  done  where  it  appears  that 
the  injury  resulted  from  the  joint 
act  of  both  defendants.  The  case 
with  a  perhaps  concedes  that  if  it 
appeared  that  each  defendant  was 
liable  for  part  of  the  injury,  there 
might  be  an  apportionment  of  dam- 
ages (citing  Austin  v.  Willward,  Cro. 
Eliz.  8G0;  Heydon's  Cases,  supra); 
but  not  where  the  whole  injury  was 
jointly  done.  Holley  v.  Mix,  3 
Wend.  350. 

1  Bevin  v.  Linguard,  1  Brev.  394; 
White  V.  McNeily,  1  Bay,  11;  Boon 
V.  Horn,  3  Strobh.  L.  159.  Such  ap- 
portionment does  not  diminish  the 
merit  or  amount  of  the  plaintiff's 
recovery.  The  aggregate  of  aU  the 
damages  found  is  the  damage  of  the 
plaintiff. 

2 1  Saund.  307;  Bulkley  v.  Smith,  1 
Duer,  643;  Crawford  v.  Morris,  5 
Graft.  90;  AUen  v.  Craig,  13  N.  J.  L. 
294;  HoUey  v.  Mix,  3  Wend.  350; 
Bohau  V.  Taylor,  6  Cow.  313. 


820  TLEADING    AND   PKOCEDUHE. 

the  plaintiff  may  elect  to  enter  judgment,  de  melioribus  dam/nis, 
against  all  the  defendants  found  jointly  guilty.^ 

In  actions  against  several,  damages  against  all  can  be  assessed 
only  for  acts  committed  by  all  the  defendants  jointly ;  and  the 
rule  is  the  same,  although  all  the  defendants  have  been  de- 
faulted by  agreement.^  Separate  acts,  not  committed  with  a 
common  purpose  or  design,  and  without  concert,  will  not 
authorize  a  joint  recovery.^  If  it  be  proved  that  only  one  was 
concerned,  the  plaintiff  may  recover  against  him  as  if  he  only 
had  been  sued.  Persons  who  have  not  conspired  together,  or 
joined  in  committing  the  wrong,  should  not  be  joined  in  the 
same  action  as  defendants.* 

Double  and  treble  damages. —  "When  such  penal  damages 
are  allowed  by  statute,  and  they  are  specially  claimed  in  the 
declaration,  as  they  must  be,^  it  is  appropriate,  and  according  to 
the  general  practice,  for  the  jury,  if  they  find  the  defendant 
guilty,  to  find  single  damages,  in  terms;  then  the  court,  on 
motion,  to  direct  judgment  for  the  increased  damages  provided 
for  in  the  statute.®  But,  if  the  statute  contain  no  express  or 
implied  directions  on  the  subject,  it  is  immaterial  whether  the 
court  or  the  jury  doubles  or  trebles  the  damages.^ 

To  authorize  judgment  for  such  statutory  damages,  a  verdict 
should  be  found  for  the  plaintiff,  separately,  upon  a  count 
framed  under  the  statute.  When  the  declaration  contains  sev- 
eral counts,  some  for  common  law  causes,  and  others  upon  a 
statute  giving  double  or  treble  damages,  and  a  general  verdict  is 
found,  a  judgment  for  only  single  damages  can  be  rendered ;  for 
it  cannot  be  judicially  known  but  that  the  verdict  includes 
damages  for  all  the  causes  stated  in  the  declaration.^ 

1  Hey  don's  Case,  11  Coke,  5a;  ecross  v.  U.  S.  1  Gall.  26;  Quimby 
Eochester  v.  Anderson,  1  Bibb,  439;  v.  Carter,  20  Me.  218;  Beekman  v. 
O'Shea  v.  Barker,  8  Abb.  69;  Bulkley  Chalmers,  1  Cow.  584;  Swift  v. 
V.  Smith,  1  Duer,  643.  But  see  Applebone,  23  Mich.  252;  Warren  v. 
Davis  V.  Chance,  2  Yerg.  94.  Doohttle,  5  Cow.  678;  Livingston  v. 

2  Folger  V.  Fields,  12  Cush.  93.  Plainer,  1  Cow.  175. 

3  Leidig  v.  Bucher,  74  Pa.  St.  65.  "'  Quimby  v.  Carter,  supra. 

4  Id.  SEwiug  v.    Leaton,    17    Mo.   465 
sRoyse  v.   May,   93  Pa.   St.   454;     Labeaume  v,  Woodfolk,  18  Mo.  514 

Rees  V.  Emrick,  6  S.  &  R.  286;  Chip-  Lowe  v.  Harrison,  8  Mo.  350 
man  v.  Emeric,  5  Cal.  238;  Palmer  Shrewsbury  v.  Bawtlitz,  57  Mo.  414 
V.  York  Bank,  18  Me.  166.  Thayer  v.  Sherlock,  4   Mich.  173 


VEKDICT   AND   JUDGMENT. 


82T 


Judgment. —  The  judgment  is  tlie  legal  conclusion  upon  the 
facts  established  by  the  pleadings  and  verdict.^  If  there  is  no 
plea,  and  the  subject  of  the  action  is  of  such  a  nature  that,  the 
declaration  being  confessed,  the  amount  of  the  recovery  can  be 
ascertained  by  mere  computation,  the  record  affords  the  data 
for  ascertaining  the  amount  for  which  judgment  may  be  ren- 
dered ;  then  the  assessment  may  be  made  by  the  clerk  —  unless 
the  practice  is  otherwise  by  statute ;  in  other  cases,  as  we  have 
seen,  a  jury  must  be  called.  If  witnesses  have  to  be  exam- 
ined, and  the  damages  are  unhquidated,  a  failure  to  answer 
the  declaration  does  not  authorize  the  entiy  of  final  judg- 
ment.2 

Where  a  case  is  tried  before  a  jury,  and  they  return  a  verdict 
for  the  plaintiff,  but  without  any  finding  of  damages,  the  com't 
may  amend  the  verdict  in  this  respect  by  adding  nominal  dam- 
ages, as  it  is  a  legal  consequence  of  the  finding,  and  enter  judg- 
]nent  accordingly ;  and  this  correction  is  necessary  to  give  the 
plaintiff  a  judgment  for  costs.^ 


Osborn  v.  Lovell,  3G  Mich.  246;  Ben- 
ton V.  Dale,  1  Cow.  160. 

1  Lamphear  v.  Buckingham,  33 
Conn.  237. 

■-Martin  v.  Price,  Minor  (Ala.),  68; 
Phillips  V.  Malone,  id.  110;  Beam  v. 
Haydeu,  5  Bush,  426;  Kenum  v.  Hen- 
derson, 6  Ala.  132;  Arrington  v.  Mo- 
bile, etc.  R.  R.  Co.  30  ]\Iiss.  470; 
Clarke  v.  Seaton,  18  B.  Mon.  226; 
Shirley  v.  Landrain,  3  Bush,  552. 
Ballard  v.  Parcell,  1  Nev.  342,  was 
decided  under  a  code  which  pro- 
vided the  manner  of  entering  judg- 
ment by  default  in  two  different 
classes  of  actions:  first,  where  the 
action  is  on  a  contract  for  the  recov- 
ery of  monej^  or  damages  only,  and 
there  is  a  failure  to  answer  it,  when 
it  is  made  the  duty  of  the  clerk  to 
enter  the  default,  and  immediately 
thereafter  to  enter  a  judgment;  in 
the  second  class,  default  is  entered 
in  the  same  manner,  but  the  plaintiff 
must   apply  to  the   court    for   the 


relief  demanded  in  his  complaint; 
and  it  is  also  provided  that  if  the 
taking  of  an  account,  or  the  proof 
of  any  fact,  be  necessary  to  enable 
the  court  to  give  judgment,  the 
court  may  take  the  account,  or  hear 
the  proof,  or  may  in  its  discretion 
order  a  reference  or  a  jury  for  that 
purpose.  It  was  held,  if  the  suit  be 
for  unliquidated  damages,  they  must 
be  shown  by  j)roof  in  one  of  these 
modes. 

By  the  code  of  Kentucky,  allega- 
tions of  value  or  amount  of  damages 
cannot  be  taken  as  true  by  failure 
to  answer.  Daniel  v.  Judy,  14  B. 
Mon.  393;  Clarke  v.  Seaton,  18  B. 
Mon.  226. 

3  Von  Schoening  v.  Buchanan,  14 
Abb.  Pr.  185;  Pickens  v.  Hayden,  3 
Stew.  10;  Stevens  v.  Briggs,  14  Vt. 
44;  Loomis  v.  Tyler,  4  Day,  141; 
Thomas  v.  Commonwealth,  3  J.  J. 
Marsh.  121. 


828  PLEADING   AJSTD   PKOCEDUKE. 

The  judgment  must  follow  the  vekdict.^ —  The  verdict  is 
good  if  it  furnish  the  data  for  ascertaining  with  certainty  by 
calculation  the  amount.  The  judgment  is  warranted  by  the 
verdict  when  rendered  for  the  amount  so  ascertained.^  Thus, 
•where  the  suit  was  on  a  note  for  $100,  and  the  jury  returned  a 
verdict  "  for  the  plaintiff  for  the  amount  of  the  note,  $100,"  and 
a  judgment  was  rendered  for  $105.66,  principal  debt  and  inter- 
est, the  court,  holding  that  the  interest  followed  the  debt  as  an 
incident,  affirmed  the  judgment.^  When  the  verdict  is  excessive, 
and  the  excess  is  remitted,  the  judgment  properly  is  rendered 
for  the  residue.*  If  a  verdict  exceed  the  penalty  of  a  bond,  the 
court  may  enter  judgment  for  the  proper  amount.* 

The  judgment  must  be  certain  —  And  must  state  the  amount 
adjudged  in  the  lawful  money  of  the  forum.  The  entry  ought 
to  contain  in  itself  such  precision  and  certainty  as  to  enable  the 
clerk  to  issue  execution  by  inspection  of  it,  without  reference  to 
other  entries.^  A  verdict  in  assumpsit  was  found  in  favor  of  the 
plaintiff  for  $90,  with  interest  from  a  day  stated;  a  judgment 
was  entered  on  it  for  $90,  with  interest  from  the  same  day. 
This  judgment  w^as  reversed  and  then  entered  up  for  the  aggre- 
gate amount,  the  verdict  being  good.  The  judgment  was  un- 
certain. "  The  date,"  say  the  court,  "  from  which  interest  is  to 
be  calculated  is  given  by  the  verdict,  but  the  time  to  which  it  was 
to  run  cannot  be  ascertained  without  reference  to  the  whole 
record ;  it  would  run  till  the  rendition  of  the  judgment,  from 
which  time  the  principal  and  interest,  as  a  gross  amount  of 
damages,  would  carry  interest.  The  rendition  of  the  judgment 
is  the  act  of  the  court,  and  a  defect  in  the  judgment  cannot  be 
amended  by  the  clerk  in  issuing  execution."  '^ 

^  Colonization  So.  v.  Reed,  25  Tex.  Harmon  v.  Childress,  3  Yerg.  327; 

Sup.  343;  Diedrich  v.  North  "West-  Spiva  v.  Williams,  20  Tex.  442;  Rob- 

ern  R.  R.  Co.  47  Wis.  662;  Mitchell  erts  v.  Landram,  id.  471;  Early  v. 

V,  Giessendorff,  44  Ind.  358;  Reid  v.  Moore,  4  Munf.  262;  Berry  v.  Ander- 

Dunklin,  5  Ala.  205;  Martin  v.  Com-  son,  2  How.  (Miss.)  649;  Claughton 

mouwealth,  6  J.  J.  Marsh.  549.  v.  Black,  24  Miss.   185;  Downing  v. 

2  See  ante,  p.  816.  Dean,  3  J.  J.  Marsh.  378;  Mtchell  v. 

3  Fisk  V.  Holden,  17  Tex.  408.  Gibson,    14    Ark.    224;    Bartlett  v. 

4  Linder  v.  Monroe,  33  111.  388.  Blanton,  4  J.  J.  Marsh.  426. 

s  Cohea  v.  State,  34  Miss.  179.  '^  Tankersley    v.     Silburn,     Minor 

<>Boyken    v.    State,  3  Yerg.    426;      (Ala.),  185.     A  judgment  cannot  be 

Peet  V.  Whitmore,  14  La.  Ann.  408;     rendered  to  draw  interest  prior  to 


VEEDICT   AND   JUDGMENT. 


829 


In  rendering  judgments  for  money,  and  all  judgments  for 
debts  or  damages  must  be  so  rendered,  and  in  lawful  currency,^ 
the  denominations  of  the  money  must  be  specified.^  A  judgment 
for  an  amount  expressed  in  barren  figures,  as  "  for  four  hundi'ed 
and  sixty-one  -^o^  damages,"  is  a  nulUty ;  it  does  not  express  a 
sum  of  money.'     Expressing  the  amount  in  figures  is  not  prob- 


its  rendition.  Sommon  v.  Garrett, 
McCalion  (Kan.),  83.  The  judgment 
entry,  in  Burnett  v.  Carath,  23  Tex. 
173,  recited  the  trial  and  set  out  the 
verdict,  which  was:  "We,  the  jury, 
find  for  the  plaintiff  one  thousand 
two  hundred  and  nineteen  55-100 
dollars  principal;  and  the  further 
sum  of  one  hundred  and  seventy- 
seven  89-100  dollars  interest;  making 
in  the  aggregate  $1,347.44."  After 
the  recitals,  the  entry  contained 
judgment:  "It  is  ordered,  adjudged 
and  decreed  by  the  court,  that  the 
plaintiff  do  recover  of  the  defend- 
ant for  their  debt,  damages  and 
costs,"  etc.  This  judgment  was  held 
erroneous  for  being  uncertain  as  to 
the  amount  of  recovery.  See  Martin 
V.  Commonwealth,  6  J.  J.  Marsh. 
549;  Hann  v.  Gosling,  9  N.  J.  L.  248; 
Blane  v.  Sansum,  2  Call,  495;  Cod- 
wise  V.  Taylor,  4  Sneed,  346;  Brown 
V.  Horless,  23  Tex.  645. 

A  more  liberal  rule  was  laid 
down  in  Pennsylvania,  in  Lewis  v. 
Smith,  2  S.  &  R.  143.  The  judgment 
in  that  case  is  thus  referred  to  and 
maintained  by  Tilghman,  C.  J.: 
"  The  judgment  was  entered  in  the 
way  very  usual  in  this  court,  in  ac- 
tions on  the  case;  that  is  to  say,  the 
prothonatory  entered  in  the  docket 
judgment,  without  mentioning  for 
what  sum.  Inconveniences  fre- 
quently arise  from  our  loose  prac- 
tice; but  the  practice  of  every  court 
is  justly  said  to  be  the  law  of  the 
court;  and  we  should  produce  much 
greater'  evils  than  those  we  wislied 
to  prevent,  should  we  attempt  now 


to  destroy  past  judgments,  because 
they  were  not  entered  in  a  manner 
so  accurate  as  they  might  have 
been.  ...  I  take  it,  that  where 
judgments  are  confessed,  if  the 
plaintiff's  demand  is  of  the  nature  of 
a  debt,  which  may  be  ascertained 
by  calculation,  whether  it  arise  on  a 
note,  or  other  writing,  or  on  an  ac- 
count, it  is  sufficient  to  enter  judg- 
ment, generally.  The  judgment  is 
supposed  to  be  for  the  amount  laid 
in  the  declaration,  and  the  execution 
issues  accordingly.  But  the  plaintiff 
indorses  on  the  execution  the 
amount  of  the  actual  debt,  and  if 
the  defendant  complains  that  injus- 
tice has  been  done,  the  court  are  al- 
ways ready  to  give  immediate  and 
liberal  reUef,  on  motion." 

^Duerson  v.    Bellows,  1    Blackf, 
217;  Maynard  v.  Newman,   1  Nev, 
271;  Sib'ert  v.  Kelly,  6  T.  B.  Mon 
669;  Whetstone  v.  CoUey,  36  lU.  328 
Stockton  V.  Scobie,  1  g.  J.  Marsh.  6 
Carson  v.  Pearl,  4  J.  J.  Marsh.  93 
Griffith  v.  Miller,  6  J.  J.  Marsh.  339 
Randolph  v.   Metcalf,   6  Cold.  400 
Erlanger  v.  Avegno,  24  La.  Ann.  77 
Buchegger  v.  Schultz,  13  Mich.  420 
Henderson  v.  McPike,  35  JIo.  255 
Bank  of  P.    E.    I.   v.  Tnambull,  53 
Barb.  459;  Mitchell  v.  Henderson,  63 
N.  C.  643;  ChamberUn  v.  Vance,  51 
Cal.  75;  Munter  v.  Rogers,  50  Ala.  283. 

2  Carr  v.   Anderson,  24  Miss.  188. 

3  Carpenter  v.  Sherfy,  71  lU.  427; 
Lawrence  v.  Fast,  20  lU.  338;  Pitts- 
burgh, etc.  R.  R.  Co.  V.  Chicago,  53 
lU.  80;  Randolph  v.  Metcalf,  6  Cold. 
400. 


830  PLEADING    AND   rEOCEDUKE. 

ably  an  infraction  of  the  statutes  requiring  judicial  proceedings 
to  be  recorded  in  the  English  language,^  but  it  is  deemed  too  un- 
safe, and  therefore  has  been  held  not  to  be  tolerated.^  In  New 
Jersey,  such  proceedings  being  required  to  be  recorded  "  in  words 
at  length,"  stating  the  amount  of  a  judgment  in  figures  has  been 
held  to  be  good  cause  for  reversal.^ 

Section  6. 

RESTITUTION  AFTER  REVERSAL  OF  JUDGMENT. 

May  he  by  sxiit  or  by  order  or  writ  of  restitution. 

When  it  happens  that  a  judgment  is  collected  or  paid  pending 
a  writ  of  error,  appeal,  or  certiorari,  the  defendant  is  entitled, 
on  reversal  of  the  judgment,  to  restitution  of  what  he  has  lost 
by  the  erroneous  judgment.  If  collected  or  received  upon  a 
judgment  valid  at  the  time  and  binding  between  the  parties, 
and  that  judgment  is  subsequently  reversed,  the  money  may 
be  recovered  back,  although  the  payment  may  not  have  been 
coerced  by  actual  duress.*  It  may  be  recovered  by  suit.^  Other 
common  law  remedies  are  cumulative.^ 

The  court  which  rendered  the  erroneous  judgment  may  cause 
restitution  to  be  made,  and  the  appellate  cornet,  after  reversing 
the  judgment,  if  informed  by  the  record,  or  otherwise,  that  the 
judgment  has  been  collected,  may  require  restitution  to  be 
made  by  process  from  the  court  below,  and  enforce  compliance 
by  mandamus.'^  The  mode  of  proceeding  to  procure  such  resti- 
tution must  be  regulated  according  to  circumstances.  Some- 
times it  is  done  by  a  writ  of  restitution,  without  a  scire  facias, 
when  the  record  shows  that  the  money  has  been  paid,  and  there 
is  a  certainty  as  to  what  has  been  lost.  In  other  cases,  a  scire 
facias  may  be  necessary  to  ascertain  what  is  to  be  restored.^ 

iFuUertonv.  Kelliher,  48Mo.  542;  354;  Clark  v.   Pinney,    6  Cow.  297; 

Tankersley  v.  Silburn,  Minor  (Ala.),  Green  v.  Stone,  1  Har.  &  J.  405. 

185.  6  Id. 

2  Linder  V,  Monroe,  33  111.  388.  ^Ex    parte    Morris,  9    WaU.  605; 

3  Cole  V.  Petty,  3  N.  J.  L;  60;  Hall  v.  Emmons,  11  Abb.  N.  S.  435. 
Walter  v.  Vanderhoof,  2  N.  J.  L.  73.  8 id.;  2  Salk.  588;  Tidd's  Pr.  1033; 

4Lott  V.  Swezey,  29  Barb.  87.  Hunt  v.  Westervelt,  4  E.  D.  Smith, 

5 Id.;   Sturgis  v.  AUis,  10  Wend.      225.     In  Safford  v.  Stevens, 3  Wend. 


EESTITUTION    AFTER   UEVKKSAL    OF   JUDGMENT. 


831 


What  is  done  under  the  execution  pursuant  to  its  precept  is 
valid ;  and,  so  far  as  strangers  and  third  persons  are  concerned, 
is  iinal.^  Where  the  property  taken  under  the  erroneous  judg- 
ment, in  the  absence  of  a  supersedeas  bond  on  an  appeal,  has, 
by  voluntary  s?Je,  or  by  seizure  and  sale  under  process,  passed 
to  innocent  purchasers,  pending  the  appeal;  or  where  money 
collected  under  such  judgment  is  received  by  one  in  a  fiduciary 
character,  as  by  an  administrator,  and  he  has,  pursuant  to  an 
order  of  court,  paid  it  over  to  another,  the  summary  remedy 
provided  b}^  the  statute  for  ordering  restitution  cannot  properly 
be  administered ;  and  the  party  must  pursue  a  different  remedy 
by  which  all  necessary  parties  may  be  brought  before  the  court.^ 

The  court  can  by  such  summar}^  remedy  reach  what  is  still  in 
the  possession  of  the  adversary  party.*  If  suit  is  brought 
against  an  officer  who  has  sold  property  to  satisfy  a  judgment, 
afterwards  reversed,  and  still  holds  the  proceeds,  the  recovery 
or  restitution  will  be  limited  to  the  amount  realized;  but  where 
the  action  is  against  the  person  who  occasioned  the  injury,  re- 


158,  a  judgment  of  non-suit,  ren- 
dered in  the  coninion  pleas,  was  re- 
vei*sed  with  costs,  and  a  new  trial 
gi'anted.  The  record  of  the  supreme 
court  contained  a  suggestion  that 
the  plaintiff  had  obtained  satisfac- 
tion of  the  judgment  for  costs  in  the 
common  pleas,  whereby  the  defend- 
ant had  lost  $73.83,  "as  was  sug- 
gested, shown  to,  and  manifestly 
appeared  "  to  the  court;  whereupon 
the  court  awarded  restitution.  In 
the  court  of  errors,  referring  to  this 
practice,  the  chancellor  said:  "It 
was  undoubtedly^  the  former  prac- 
tice to  award  restitution  on  the  re- 
versal of  the  judgment,  only  where 
it  appeared  by  the  return  of  the 
execution  that  the  damages  or  costs 
erroneously  awarded  by  the  court 
below  had  been  actually  levied  and 
paid  over.  And  if  the  fact  did  not 
appear  upon  the  record,  the  party 
was  put  to  his  scire  faci  inquiry  to 
ascertain  the  fact,  upon  the  return 
of  which  restitution  was  awarded. 


But  I  believe  the  modern  practice 
has  been  to  apply  to  the  court  on 
affidavit  for  leave  to  suggest  the 
fact  on  the  record,  and  upon  which 
the  judgment  of  restitution  is 
awarded.  I  see  no  objection  to  this 
course,  as  the  coui-t  would  undoubt- 
edly permit  the  defendant  to  trav- 
erse the  suggestion,  if  there  was  any 
doubt  of  its  truth. "  See  Sheridan  v. 
Mann,  5  How.  Pr.  201;  AiTowsmith 
V.  Van  Arsdale,  21  N.  J.  L.  471.  In 
New  Jersey,  the  amount  to  be  re- 
stored is  settled  by  an  assessment 
signed  bj^  one  of  the  judges.  Id,; 
Harm  v.  McCormick,  4  N.  J.  L.  109; 
Eandolph  v.  Bayles,  2  N.  J.  L.  52; 
McChesney  v.  Rogers,  8  N.  J.  L.  272. 
The  practice  is  now  very  generally 
regulated  by  statute. 

1  Bank  of  U.  S.  v.  Bank  of  Wash- 
ington, 6  Pet.  8. 

■^  Polk  County  v.  Syphen,  17  Iowa, 
358. 

sLovell  V.  German  R.  Church,  13 
Barb.  67. 


832  PLEADING    AND   PEOCEDUEE. 

CO  very  may  be  had  for  the  whole  damage  the  injm^ed  party  has 
sustained  by  reason  of  the  erroneous  judgment  and  execution, — 
he  may  recover  the  full  value  of  property  sold.^ 

Eestitution  may  be  made  of  land  sold  under  a  decree  of  fore- 
closure to  the  plaintiff  pending  an  appeal,  after  reversal;  and 
in  such  case  the  restoration  will  include  an  accounting  for  rents 
and  profits,  less  the  value  of  improvements  and  additions.^  It 
includes  the  right  to  costs  which  the  party  should  have  recov- 
ered when  the  erroneous  judgment  was  rendered.  Thus,  after 
a  judgment  in  favor  of  a  plaintiff  had  been  affirmed  by  a 
county  court,  and  was  reversed  by  the  supreme  court,  it  was 
held  that  restitution  entitled  the  defendant  to  the  costs  of  de- 
fending before  the  justice,  and  of  prosecuting  the  appeal  before 
the  county  court.^ 

Payment  or  collection  of  the  erroneous  judgment  is  not  re- 
garded as  a  payment  of  or  upon  the  debt  or  demand  upon  which 
it  was  rendered ;  and  if  a  new  trial  is  ordered,  such  payment  or 
collection  will  only  avail  by  way  of  set-off/  Eestitution  in 
such  cases,  that  is,  where,  on  reversal,  a  new  trial  is  granted,  is 
held  to  be  discretionary  in  IS'ew  York,  under  the  code,  and  the 
court  may  therefore  impose  conditions  for  the  safe  keeping  of  the 
funds  to  answer  any  eventual  recovery.^  It  was  discretionary 
before  the  statute.^ 

1  Bac.  Abr.  tit.  Execution;  Thomp-  sons  to  satisfy  it.  Part  of  the  money- 
son  V.  Tliompson,  1  N.  J.  L.  159;  was  paid  to  prior  incumbrancers  or 
Grayson  v.  Lilly,  7  T.  B.  Mon.  6.  creditors,    and    the    residue  to  the 

2  Raun  V.  Reynolds,  15  Cal.  459;  plaintiff.  The  judgment  was  after- 
S.  O.  18  Cal.  375.  wards  reversed  for  irregularity,  and 

SEstus  V.  Baldwin,  9  How.  Pr.  80;  the    defendant    asked    restitution. 

Jacks  V.  Darrin,  1  Abb.  233.  On  this  question  the  court  say,  by 

■t  Ringgold  V.  Randolph,  13  Ark.  Tilghman,  C.  J.:     "Under  the  cir- 

338;  Close  v.  Stuart,  4  Wend.  95.  cumstances  of  this  case,  that  is  a 

5  Marvin  v.  Brewster,  56  N.  Y.  very  important  question.  Tlie 
671;  Yoiuig  V,  Brush,  18  Abb.  171;  plaintiff's  original  judgment,  which 
Britton  v.  PhiEips,  24  How.  Pr.  111.  was  a  lien  on  the  defendant's  lland, 

6  In  Kirk  v.  Eaton,  10  S.  &  R.  103,  is  in  force.  But  the  lien  is  gone,  by 
a  judgment  confessed  was,  after  a  the  sale  of  the  land;  because  the 
year  and  a  day,  sought  to  be  revived  purchaser  will  hold  it,  notwith- 
by  scire  facias;  there  was  an  issue  standing  the  judgment  be  reversed, 
of  payment.  Judgment  for  the  Then  if  the  money  is  put  in  the 
plaintiff  having  been  rendered,  land  hands  of  the  defendant,  all  security 
was  sold  oa  execution  to  third  per-  is  gone.     It  appears  that  the  defend- 


RESTITUTION   AFTER   EEVEKSAL   OF   JUDGilENT. 


833 


ant  is  in  bad  circumstances.  The 
])roceeds  of  sale  did  not  pay  tlie 
whole  of  the  plaintiff's  debt.  The 
plaintiff  ought  not  to  hold  the 
money  after  the  reversal  of  the 
judgment.  But  he  has  a  right  to 
ask  of  the  court,  that  they  will 
place  it  where  it  may  be  found  if  it 
shall  be  pi-oved  that  he  has  not  re- 
ceived satisfaction  for  the  original 
judgment.  "We  cannot  presume  that 
the  judgment  has  been  satisfied. 
Its  strength  is  not  at  all  impaired  by 
the  reversal  of  the  proceedings  on 
the  scire  facias.  I  do  not  recollect 
that  a  case  so  circumstanced  has 
hitherto  been  before  the  court.  We 
have  said  that,  in  general,  restitu- 
tion is  matter  of  course.  But  it 
will  be  found  that  in  the  cases  which 
have  been  decided,  the  original  judg- 
ment has  been  reversed,  and  that 
thex'e  is  no  room  for  presumption 
that  there  is  anything  due  to  the 
plaintiff;  or  if  the  original  judgment 
has  not  been  reversed,  there  has 
been  no  suggestion  that  the  security 
of  the  plaintiff  would  be  endangered 
by  the  restitution.  The  defendant 
will  obtain  substantial  justice,  and 
ought  to  be  satisfied,  if  the  money 
in  the  hands  of  the  plaintiff  be  de- 
posited in  court,  subject  to  the  event 
of  a  trial  on  the  issue  of  payment 
in  another  scire  facias  to  be  sued 
out  by  the  plaintiff.  If,  indeed,  the 
defendant  had  a  right  to  an  award 
of  restitution,  ex  debito  jiistitia, 
then  this  court  would  be  forced  to 
give  it,  be  the  consequence  what  it 
may.  But  that  I  do  not  take  to  be 
the  case.  In  Baker  v.  Smith,  4 
Yeates,  185,  the  court  quashed  the 
execution,  but  refused  to  award  res- 
VOL.  1  —  53 


titution.  In  regard  to  executions 
levied  on  land,  our  situation  is  dif- 
ferent from  England.  Tliere  the 
land  is  not  sold,  and  therefore  the 
judgment  retains  its  lien,  although 
restitution  be  made  of  the  land.  I 
mean  in  a  case  like  the  present, 
where  the  judgment  on  a  scire  fa- 
cias is  reversed,  ^\itliout  touching 
the  original  judgment.  But  with 
us  the  lien  is  destroyed  by  the  sher- 
iff's sale,  which  stands  good,  though 
the  judgment  be  reversed.  Suppose 
judgment  on  a  scire  facias  on  a 
mortgage  should  be  reversed,  for 
some  defect  in  form,  after  the  mort- 
gaged property  had  been  sold. 
Would  it  not  be  a  bad  administra- 
tion of  justice,  if  the  mortgagee 
should  be  compelled  to  place  the 
money  in  the  hands  of  the  mort- 
gagor, in  insolvent  circumstances, 
and  thus  lose  all  security  for  his 
debt?  And  how,  in  iirinciiDle,  is 
that  to  be  distinguished  from  the 
case  before  us?  Courts  of  justice 
are  studious  to  preserve  to  the  par- 
ties all  the  security  in  their  power. 
And  in  this  they  look  to  the  defend- 
ant as  weU  as  the  plaintiff.  A  %\T.-it 
of  error  is  no  suparsedeas  to  an  ex- 
ecution, whose  operation  has  com- 
menced before  notice  to  the  plaint- 
iff. Yet,  if  the  case  require  it,  the 
money  levied  by  the  execution  will 
be  retained  in  court  till  the  event  of 
the  writ  of  error  be  known.  2 
Saund.  101,  note  h;  Willes,  271. 
There  the  court  ties  the  hands  of 
the  plaintiff  for  the  security  of  the 
defendant.  Here  we  ought  not  to 
shut  our  eyes  to  the  consequences,  of 
giving  the  money  to  the  defendant." 


INDEX. 

A.BATEMENT—  Pages. 

ou  determination  of  issue  judgment  peremptory  and  same  jury 
shovdd  assess  the  damages;  if  omitted  another  jury  may,         -      780 

ACCEPTOR  — 

primarily  liable,  and  his  contract  governed  by  law  of  the  place 
of  payment,         __-----  633 


A.CCIDENT  — 

town  held  liable  for,  when  injury  results  from  defect  in  high- 
way,    --------- 


36 


ACCOUNT  — 

when  entire,  so  as  to  constitute  but  one  cause  of  action,        -  184 

what  the  fact  that  there  is  a  running  account  imports,     -  -      185 

when  the  creditor  has  separate  branches  of  his  business  con- 
ducted bj"  separate  agencies,     -----  185 

see  opinion  of  Co  wen,  J.,  in  Bendernagle  v.  Cocks,  -  -      179 

debits  and  credits  reciprocal  payments,  when  brought  into  an 
account,    --------  347 

parties  having  dealings  proper  for  account  may  put  items  into 

account  to  show  not  balance  and  extinguish  the  lesser  claim,       348 
when  interest  allowed  on  accounts,  by  custom  or  tacit  agreement,      583 
by  default  of  jmyment,  .  .  -  -  -  -      619 

loss  of,  as  a  consequence  of  destroying  account  books,  must  be 
specially  alleged,  ------  704 

ACCORD  AND  SATISFACTION  — 

definition,  ..------  425 

payment  of  part  of  a  debt  will  not  support  agreement  to  dis- 
charge tlie  whole,  ------ 

any  other  act  or  promise  which  is  a  new  consideration  wiU 

suffice, 428 

payment  at  a  different  place,  or  before  maturity,         -           -  438 
giving  note,  or  security,           ..-.--  428 
satisfaction  from  stranger,            -                      .           -           -  428 
there  must  be  something  received  which  the  creditor  was  not  be- 
fore entitled  to,           -------  429 

composition  with  creditors,  -----  430 

compromise,       --------  430 

agreement  must  be  executed,       -----  432 

rescission  or  exoneration  before  breach,        -  -  -  -  432 


436 


98 


836  INDEX. 

ACTION—  Pages. 

costs  and  expenses  of,  recoverable  as  damages  when  proximate 

and  natural  result  of  tort  or  breach  of  contract,    -  -      31,  106 

not  Avhen  only  remote  consequence,  _  .  - 

nor  when  they  are  denied  in  the  particular  case, 
a  cause  of  action  has  value  and  is  of  the  nature  of  property,       -         7 
how  discharged,       ..--.--  7 

cannot  be  affected  by  subsecxuent  legislation,  -  -  -  7 

wrongs  and  breaches  of  contract  concerning,  actionable,        -  7 

when  it  survives,  ....---7 

what  must  concur  to  give  a  cause  of  action,     ...  3 

ACTUAL  LOSS  — 

necessary  to  give  a  right  of    action  for    more  than  nominal 

damages,         .-.---- 
it  is  the  measure  of  damages  for  compensation, 
there  are  some  exceptions,      -  .  -  -  - 

AD  DAMNUM  — 

if  left  blank,  judgment  sustained,     .  -  -  - 

may  be  amended,  .  -  -  _  - 

it  limits  the  plaintiff's  recovery,        -  -  -  - 

necessary  to  default  judgment  under  the  code, 

ADMINISTRATOR  — 

charged  with  payment  of  his  debt,     -  -  -  - 

may  retain  for  his  debt  out  of  assets,     -  -  - 

ADVICE  OF  COUNSEL  — 

may  avail  to  mitigate  exemplary  damages,  -  -  237,  747 

AGENT  — 

falsely  assuming  to  be,  -  -  -  -  -  31,  140 

liability  to  principal,  .__-.-  131 

for  failing  to  disburse  money  to  pay  incumbrance,  -  129,  130 

how  the  amount  of  indemnity  against  his  principal  ascertained,  137 

may  receive  payment,  ._..--  387 

may  make  tender,  ___---  448 

tender  may  be  made  to,  when,  -  _  _  -  -  449 

must  be  shown  that  he  had  authority,    -  -  -  -  451 

baiik  agent  for  holder  of  paper  deposited  for  payment,     -  -  450 

when  interest  allowed  against,     -----  622 
master  liable  for  exemplary  damages  for  maUcious  tort  of  servant 

or  agent,  .__-----  749 

AGGRAVATION  — 

not  necessary  to  allege  matters  of,  -  -  -  -  766 

matter  of,  alleged,  not  ti-aversable,     -----      769 
proof  of,  to  enhance  damages,    -  -  -    729,  731,  735,  736,  74a 

social  standing  of  parties  and  defendant's  wealth,       -  -    744,  745 


- 

9 

17 

- 

18 

. 

759 

761, 

762 

- 

761 

760 

377 

357, 

358 

INDEX.  837 

AGREEMENT—  •  Pages. 

implied,  follows  consifleration,  -----      205 

alternative  agi'eements,     ------  479 

tacit  agreement  to  pay  interest,    •    -  -  -  -  -      582 

ALTERNATIVE  AGREEMENTS, 479 

AMENDMENT  — 

of  ad  damnum,  ------  761,  762 

of  verdict,    --------  805 

must  be  in  matter  of  form,     ------      809 

court  may  not  amend  in  matter  of  substance,  -  -    806,  809 

and  only  according  to  the  intention  of  the  jury,     -  -  -      809 

ANIMALS  — 

separate  owners  of  animals  not  jointly  liable  for  their  joint  acts,      215 
otherwise  where  the  owners  keep  them  in  one  herd,     -  -  215 

owner  liable  for  acts  of   his  animals  done  according  to  their 
natural  inclinations,  ------        53 

not  liable  for  act  of  his  animal  in  consequence  of  its  vicious 

habit  of  which  he  had  no  knowledge,  -  -  -    '         54 

liable  for  suffering  diseased  sheep  to  trespass  and  communicate 
disease,  --------24 

ANNOYANCE  — 

as  an  element  of  damages,  on  contract,        -  -  -  78,  15S 

ANNUITY  — 

stipulated  damages  for  non-payment,     -  -  -  -  499 

damages  for  negligence  destroying  security  for,      -  -  -      188 

interest  on,  -------  608 

APPEAL  — 

not  waived  bj'  acceptance  of  payment,         -           -           -           -  465 

interest  pending,      -------    711,  715 

APPLICATION  OF  PAYMENTS,  -  -  -  -  398-425 

the  debtor  has  absolute  right  to  apply  his  payments,    -           -    398,  399 

must  exercise  the  right  when  he  pays,          -           -           -           -  399 

his  direction  may  be  infen-ed  from  circumstances,       -           -  399 

may  be  inferred  from  nature  of  transaction,            .            -           _  399 

his  right  of  application  confined  to  voluntary  payments,        -  400 

trustee  paying  may  not  direct  application  of  his  payment,           -  401 

surety  cannot  interfere  with  debtor  s  application,        -           -  400 
no  presumption  of  debtor's  intention  to  apply  for  exoneration  of 

surety,              .-.-----  401 

nor  can  subsequent  incumbrancer  interfere  with  debtor's  appli- 
cation,       --------  401 

an  agreement  between  delator  and  creditor  for  a  particular  appli- 
cation holds  both,       -------  403 

moneys  from  collaterals,  an  instance,                 .            -           .  403 
acquiescence  in  a  different  application  made  by  creditor  will 

amount  to  consent,              -----             -  403 


838  INDEX. 

APPLICATION  OF  PAYMENTS  —  continued.  Pages. 

creditor  cannot  disregard  debtor's  direction,     -           -           -  402 

debt  extinguished  to  extent  of  payment,     -           -           -           -  402 

debtor  cannot  change  his  appHcaJion,     -           -           -           -  403 

he  will  be  bound  by  it,  though  he  apply  it  to  pay  interest  on  a 

claim  not  bearing  interest,               .            _           _            -           _  403 

so  if  he  apply  it  to  a  debt  within  statute  of  frauds,      -           -  403 

or  an  illegal  claim,        .._----  403 

if  applied  to  pay  usury  it  is  deemed  extortion,             -           -  403 

not  so  universally,         ...----  403 

by  mutual  consent,  debtor's  application  of  payment  may  be 

changed,   --------  404 

evidence  may  be  given  that  payments  applied  on  extra  interest,  -  404 
evidence  of  debtor's  application  of  payments,       -           -          404,  405 
creditor  may  apply  payments  where  the  debtor  has  made  no  ap- 
plication, --------  405 

not  required  to  make  immediate  application,          .           _           _  405 

he  may  apply  payment  to  either  of  several  debts,       -           -  406 

may  apply  part  to  each,           ..----  407 

but  not  to  a  disputed,  contingent  or  unliquidated  demand  when 

he  has  others,            -------  406 

nor  to  one  not  due  in  lieu  of  one  due,    -           -           -           -  406 

where  all  the  debts  are  barred  by  statute  of  limitations,  -           -  407 
creditor  may  apply  the  payment  on  a  demand  within  statute  of 

frauds, 407 

on  a  bill  void  for  want  of  stamp,       -----  407 

on  a  demand  barred  by  the  statute  of  limitations,       -           -  407 
general  statement  of  creditor's  right  to  make  application  of 

payment,         --------  407 

should  not  make  an  applicfftion  that  the  debtor  could  reasonably 

object  to, 407 

he  may  exercise  election  though  demands  are  not  all  of  same 

grade,  ---------  408 

as  between  legal  and  equitable  he  must  apply  on  the  former,  408 

he  may  apply  to  a  demand  not  secured,            .            -            -  408 
circumstances  may  give  the  creditor  a  right  to  apply  as  would 

not  otherwise  be  admissible,            .           _           -           -           -  408 

as  to  debts  owed  by  several  or  to  several,          .           _           -  408 
creditor  cannot  apply  to  a  debt  contracted  after  the  payment  in 

preference  to  an  existing  one,         .            -           .           -            -  411 

application  not  complete  untU  debtor  notified,            -           -  411 

right  of  appropriation  confined  to  the  parties,        -           -           -  411 

a  gi-antee  of  a  mortgagor  cannot  insist  on  its  application  to  the 

mortgage,             -------  412 

agreement  binding  as  to  a  mode  of  payment  made  at  the  incep- 
tion of  a  contract  of  suretyship,     -----  412 

appropriation  by  the  court,           -----  413 

court  will  make  it  according  to  the  justice  and  equity  of  the  case,  413 


INDEX. 


839 


APPLICATION  OF  PAYJ>IENTS  —  continued.  Pages. 

when  payments  to  be  applied  pro  rata,          .           .           -  -      415 

general  paj^nient  applied  to  oldest  debt,            .           _           .  418 

to  a  debt  bearing  interest,  and  first  to  interest,       -           -  -      421 

to  the  debt  least  secured,  ------  421 

ARBITRATION  — 

damages  for  wi-ongful  revocation  of  submission,    -  -  -      '  95 

ARREST  — 

mitigation  for  wrongful  arrest,    -----    227,  256 

ASSAULT  AND  BATTERY— 

what  may  be  proved  in  mitigation,  -  -  -  -  227,  229 
what  items  of  damage  may  be  taken  into  consideration  for,  -  158,  729 
what  consequential  damages  remote,  -  -  -  -  49 
excess  of,  if  wanton,  ground  of  exemplary  damages  though  be- 
gun in  self-defense,  _...,_  724 
defendant  in  mitigation  may  show  the  res  gestae,  -           -  -      244 

ASSESSMENT  OF  DAIVLIGES, 771 

writ  of  inquiry,  --_.--.  771 

what  damages  may  be  assessed  without  a  jury,  -  -     972,  827 

what  a  default  or  demurrer  admits,  -----  773 

defendant  may  offer  evidence,    -----  776 

not  allowed  to  disprove  plaintiff's  cause  of  action,  -  -  777 

when  new  jury  may  be  called  to  assess  damages,        -  -  780 

correction  of  error  in  assessment,      -----  780 

APPROPRIATION  OF  PAYMENTS,  .  -  ,  .     398-425 

See  Application  of  Payments. 

APPRENTICE  — 

damages  for  enticing  away,         -----  196 

ATTACHMENT  — 

what  damages  remote  in  actions  on  the  bond,        -  -  -       98 

ATTORNEY  — 

value  of  his  services,  how  proved,  -  -  -  -  799 

tender  may  be  made  to,  -----  -  449 

attorney's  lien,        -  -  -  -  -  -  -  316 

advice  of,  may  be  shown  in  mitigation  of  exemplary  damages,  -  747 

ATTORNEY  OR  COUNSEL  FEES— 

as  an  item  of  damages,       -  -  -  -  -  93,  106,  136-147 

on  bonds  and  undertakings  in  judicial  proceedings,  -  -      141 

in  other  cases  as  part  of  indemnity  for  torts  or  breaches  of 
contract,    --------  142 

BAILEE  — 

value  of  property  lost  by  negligence  or  converted,  and  interest, 
the  measure  of  damages,  -----    173,  174 


b>4:0  INDEX. 

BANKER—  Pages. 

liability  of,  for  refusal  to  pay  check,  -  -  -  -      129 

agent  of  holder  of  paper  deposited  for  collection,       -  -  450 

BILLS  OF  EXCHANGE  AND  NOTES  — 

when  receipt  of  them  by  creditor,  payment,           -           -  371-379 

one  in  possession  of,  may  receive  payment,       -           -           -  387 

■  in  Kentucky,  not  necessary  for  jury  to  notice  credits  on,  -      396 

interest  on,  --------  618 

place  of  contract,  law  of,        -----  -      638 

BONDS  AND  UNDERTAKINGS  — 

given  in  legal  proceedings,  -  _  _  _  _  141 

alternative  conditions  in  bonds,  -----      477 

BURDEN  OF  PROOF— 

importance  of,  in  introduction  of  proof,  -  -  -  783 

BURNING  FLUID  — 

damage  for  selling  explosive,  without  giving  information,         -        38 

BUSINESS  — 

injury  to,  from  torts,  recoverable,     -  -  -  -    96,  121,  122 

when  damages  for  injury  to  credit  and  business  refused,       -  98 

damages  for  diverting  business,  -  -  -  -  -        98 

damages  may  be  stipulated  in  agreement  not  to  engage  in  partic- 
ular business,       -.-.-._  507 

BREACH  OF  MARRIAGE  PROMISE  — 

suits  for,  involve  other  than  pecuniary  elements,   -  -  -      156 

matters  of  mitigation,        ------    344^  354 

what  not  a  mitigation,  ------      136 

CART  — 

leaving  cart  with  horse  in  a  place  dangerous  to  children,      -  26 

CANAL  — 

consequential  damages  for  non-repair.  -  -  -  -        50 

CARRIER  — 

as  to  liability  of,  for  loss  during  delay  of  transportation,       -        59,  60 
in  case  of  deviation,     -  -  --  -  -  -69 

for  personal  injury  to  passenger  jumping  from  stage  in  view  of 

apparent  danger,  -..--.  63 

injury  to,  from  dangerous  article,  not  disclosed,     -  -  -  28,  29 

consequential  damages  for  delay  of  transportation,     -  -         85,  86 

damages  for  failure  to  carry  passenger  to  destination,       -  100-105 

for  inconvenience  to  traveler,       -----  157 

damages  in  action  against,  on  his  contract,  may  be  aggravated,  -      158 
may  be  made  liable  for  substituted  conveyance,  -  155-157 

recoupment  in  action  for  freight,       -----      381 

liquidation  of  damages  for  default  in  transportation,  -  589 


INDEX.  841 

CERTAINTY  —  Pages. 

damages  to  be  recoverable  must  be  certain  in  their  nature  and  as 
to  cause  from  which  they  proceed,  -  -  -  -        94 

requirement  that  the  damage  be  not  remote,  a  part  of  the  rule 

requiring  certainty,        ------  94 

uncertainty  when  the  injury  easily  provable,  -  -  -        94 

uncertainty  where  a  cause  is  easily  provable,    -  -  -  94 

all  uncertain  elements  of  damage  excluded,  .  -  .  95-97 

liability  for  the  principal  loss  includes  its  details  and  incidents,        96 
prospective  profits  of  insurance  agent,         .  -  _  .      HO 

of  damage  for  laying  one  railroad  across  another,       -  -  110 

conjectural  profits  of  a  whaling  voyage,      -  -  -  HO,  111 

on  warranty  of  garden  seeds,       -----  m 

damages  depending  on  prospective  growth  of  a  fruit  orchard,       113 
for  preventing  competition  for  prize,  .  .  -  -      123 

uncertain  mitigation  for  breach  of  mari-iage  promise,  -  126 

of  failure  to  provide  a  sinking  fund,  -  .  .  .      126 

why  less  certainty  required  in  cases  of  tort,     -  -  -  161 

cei'tainty  required  of  prospective  damages,  -  -  194,  195 

of  prospective  profits,       ._-._-  106 

destruction  of  growing  crop,  -----      194 

certainty  of  future  acts  under  contract  to  realize  profits,      -  195 

in  action  for  enticing  away  servarits,  -  -  -  -      196 

contracts  to  stipulate  uncertain  damages,  -  -        491,  503,  504 

CHARACTER  OF  PLAINTIFF  — 

when  bad  character  of  plaintiff  may  be  proved  in  mitigation,    -      253 

CHILD  — 

injury  to,  from  negligently  leaving  dangerous  property  in  public 

places  wliere  children  resort,     -  -  -  -  -      26,    27 

putting  loaded  gun  in  hands  of,        -  -  -  -  -         26 

mitigation  in  father's  action  for  seduction  of  daughter,        -  253 

CHOSES  IN  ACTION  — 

trover  will  lie  for,        -------7 

CIRCUITY  OF  ACTION  — 

defense  in  avoidance  of,    -  -           -           -           -           -             220 

what  essential  to  such  defense,  -           -           .           -          221,  222 

recoupment  allowed  to  prevent,  -----    264,  265 

CLERK  — 

when  tender  may  be  made  to,  -           »           .           -           -      450 

COLLATERALS— 

money  realized  from,  payment,         -----  379 
money  so  received,  appropriated  by  mutual  agreement,         -  379 
such  money  is  not  nierely  set-off,       -            -           •  -            -            -  379 
if   the  debtor  pays  his  debt  he  is  entitled  to  return  of   col- 
laterals,       379 

implied  obligation  of  creditor  receiving,      -           -           -           -  380 


812  INDEX. 

COLLATERALS  —  continued.  Pages. 

consequences  of  refusal  to  account  for  goods  so  received,      -  380 

when  placed  in  hands  of  third  person,          _            .           -           -  380 

taking  collaterals  does  not  suspend  right  to  sue,           -           -  380 
negotiable  paper  received  as  means  of  payment,  prima  facie 

payment,         _..-----  380 

change  of  form  of  collateral  does  not  destroy  its  character  as  a 

collateral,             ._....-  380 

creditor  is  only  obliged  to  apply  net  proceeds,        -           -           -  381 

assignor  may  release  excess,         -----  381 

maker's  right  of  defense  to,    -           -           -           -           -           -  381 

must  be  collected,  not  sold,          -----  883 

creditor  may  relinquish  collateral  without  consent  of  other  cred- 
itors,    ---------  388 

such  relinquishment  would  discharge  surety  for  same  debt  to 

equal  amount,      -------  383 

when  creditor  has  debtor's  indorsement  of  negotiable  paper  and 

fails  to  protest,           -------  388 

where  creditor  took  possession  of  usable  property  for  which  note 

given,        --------  388 

released  by  tender,        -------  471 

COLLISION  — 

damages  at  common  law  for,             -          •          -          -          -  34 

COMPROMISE  — 

a  good  consideration,         ----..  430 

COMMENCEMENT  OF  SUIT  — 

date  of,  a  period  in  the  estimate  of  damages,    -     187,  193,  198,  203,  203 

CONFUSION  OF  GOODS  — 

how  loss  determined,    .            ------  163 

COMMERCIAL  VENTURES  — 

damages  for  profits  of,         -           -           -           •           -           -  118 

COMPENSATION  — 

necessary  in  aU  cases  of  violation  of  rights,           •           -           -  1 

the  cardinal  principle  of,             .            .            -           -           -  17 

by  this  all  rules  of  damages  tested  and  corrected,           -           -  18 

some  exceptions  based  on  policy,            -            -           -            -  18 

limited  to  natural  and  proximate  consequences,     -           -           -  18 

this  a  logical  and  legal  boundary  in  respect  to  details,          -  127 

extends  to  all  direct  injurious  consequences,            -            -           -  19 

includes  also  consequential  damages  within  the  limits,          -  20 
distinction  between  consequential  damages  in  cases  of  contract 

and  tort, 20,  78 

damages  correlative  to  right  violated,    -           -           -           -  127 
wrongdoer  liable  for  probable  consequences,            -           -           -  20-73 

for  depriving  owner  of  property,  its  value  and  interest,        -     173,  174 

for  necessary  expenses  incurred  to  recover  property,        -           -  106 


INDEX.  848 

COMPENSATION  —  continued.  Pages. 

for  physical  pain  and  mental  suffering  from  personal  injury,  108 

not  necessaiy  to  show  bad  motive  to  obtain  compensation,  -      159 

for  wilful  wrongs,  compensation  given  with  liberal  hand,  -  71,  161 
for  costs  and  expenses  of  suits  resulting  from  wrongs,     -  -      106 

elements  of  damage  for  personal  torts,  -  -  -  -  158 

injury  to  feelings  from  insult,  ...  -  -      76R 

for  injury  to  riparian  rights,        -  -  -  -  -       96,  766 

from  removing  barrier  to  flood,  -----        27 

negligent  mislabeling  of  drug  sent  into  market,  -  -  73 

consequential  damages  from  slander,  -  -  -  -        66 

from  enticing  or  taking  away  slaves  or  servants,  -  24,  49,  54,  68 
for  breach  of  contract,  damages  contemplated  by  parties,  -  77-93 
direct  damages,  .-..--  74-77 

recovery  mostly  confined  to  these,  -  -  -  -  79 

notice  of  special  circumstances  enlarges  the  premises  and  the  re- 
coverable damages  result  therefrom,         -  .  .  .  79-82 
on  contracts  for  sale  for  special  purpose,  damages  recoverable 

with  reference  thereto,  .  .  _  _  _        79-93 

on  other  contracts  with  special  circumstances,        -  -  .  84-93 

losses  sustained  and  gains  prevented,      -  -  -  93,  138,  131-148 

profits  on  resale,  ..-_--.  81-84 

for  increased  expense  to  substituted  carrier,     -  -  -  156 

the  elements  of,  _._.-,»      127 

interest  for  detention  of  a  debt,  -----  128 

more  than  interest  may  be  recovered  for  refusal  to  pay  money,  128,  129 
on  other  contracts,  the  gains  jirevented  and  the  losses  sustained,  130-148 
for  breach  of  marriage  promise,  -----  156 
for  inconvenience,  -.-__-     157^  153 

how  compensation  affected  by  motive,         -  -  _  156,  748 

distinctions  made  for  bad  motive,  -  -  _  _  159 

stipulation  of  damages  should  be  confined  to,  -  -  -      480 

when  wealth  of  defendant  may  be  proved  to  enhance  damages 
for  compensation,  .-.---  745 

CONSIDERATION  — 

implied  assumpsit  follows,      ------      205 

partial  want  or  failure  may  be  shown  in  mitigation,   -  -  245 

inadequacy  of,  no  defense,       -  ,  -  -      426,  430,  431,  537 

CONSENT  OF  PLAINTIFF  — 

wlien  matter  of  mitigation,    ------      252 

CONCERT  SINGER  — 

consequential  damages  for  slander,         -  -  -  -  49 

procuring  to  break  contract,   ------  49 

disabling  by  battery,  ------  49 

CONSEQUENTIAL  DAMAGES  — 

definition  of,      -  -  -  -  -  -  -  -20 

wrongdoer  liable  for  probable  consequences,     -  -  -         21-78 


844  INDEX. 

CX)NSEQUENTIAL  DAMAGES  —  continued.  Pages. 

scope  of  recovery  illustrated  by  cases  —  of  wrongfully  causing 

horses  to  run  away,  ------        31,  23,  65 

invading  a  plantation,  carrying  off  slaves,  leaving  crops  unpro- 
tected,        24 

leaving  bars  of  pasture  down  near  railroad,  -  -  -        25 

injuring  boats  or  wagons  by  collision,    -  -  -  -  24 

loss  of  or  injury  to  animals  by  non-repair  of  fences,  -  -        25 

communicating  disease  by  trespassing  animals,  -  -  34 

by  laying  down  defective  gas  pipe,    -----        25 

by  undermining  a  supporting  building,  -  -  _  25 

by  negligently  setting  fires,     ------        35 

by  leaving  horse  unattended  in  public  street,    -  -  -  2() 

by  putting  loaded  gun  in  hands  of  a  child,  -  -  -        20 

by  leaving  in  public  street  or  navigable  stream  dangerous  property,  26,  37 
by  obstructing  access  of  boats  to  locks,        -  -  -  -        27 

by  removing  earth  from  a  bank  which  is  a  barrier  to  a  flood,  37 

by  removing  a  harbor  light,     ------        3« 

by  mislabeling  a  poisonous  drug  sent  into  market,      -  -  3^ 

by  selling  explosive  burning  fluid  without  disclosing  its  danger- 
ous quality,     --------38 

by  delivering  to  carrier  dangerous  articles  for  transportation 

without  explanation  of  contents,        ...  -         28,  39 

by  keeping  powder  in  an  insecure  place,       -  -  -  -        39 

by  xniblic  misrepresentation  in  mattei's  of  business,    -  -  30 

by  severing  hose  in  use  to  extinguish  a  fire,  ...        ;}() 

by  failure  of  ship  owner  to  comply  with  statute  requiring  vessel 

to  be  supplied  with  medicines,  .  -  .  .  Si) 

by  fraud  in  sale  of  real  estate,  -  -  -  -  -        30 

by  falsely  assuming  to  be  an  agent,        -  -  -  -  31 

by  non-repair  of  highways,     -  -  -  -         31,  36-4fi 

by  excluding  vessel  from  the  shelter  of  a  sea-wall,      -  -  48 

by  injury  done  by  trespassing  animal  following   his  natural 
disposition,      -  -  -  -  -  -  -  53,  51 

not  necessary  that  particular  injury  be  foreseen,  or  certain  to 
happen,     ..------  47 

instances  in  which  damages  not  natural  and  proximate  conse- 
quence, ....---  48-59 

non-repair  of  bridge  followed  by  loss  of  wood  awaiting  convey- 
ance to  market.  .....--48 

assault  and  battery  followed  by  loss  of  an  office,  -  -  49 

or  causing  inability  to  perform  in  theater,   -  -  -  -        49 

a  concert  singer  refusing  to  sing  because  libeled,  -  -  49 

omission  to  give  notice  to  repair  canal  lock,  -  -  -        50 

concealment  of  debtor's  property  to  prevent  seizure  by  his  cred- 
itors, ..-....-  51 

fraudulent  representation  of  condition  of  a  corporation  prevent- 
ing attachment,         .------53 


INDEX.  845 

CONSEQUENTIAL  DAMAGES  —  continued.  Pages. 

causing  it  to  be  believed  that  plaintiff  was  an  illicit  distiller, 

followed  by  his  conviction         ...  -  -  53 

kicking  of  a  child  by  a  trespassing  horse,     -  -  -  -        53 

enticement  away  of  servants  as  cause  of  loss  in  dealings  with 
others  afterwards  employed,     -----  54 

loss  from  failure  of  public  officer  to  perform  a  public  duty,  -        58 

or  from  wrongful  act  to  third  person,     -  -  -  -         55,  56 

no  liability  where  act  becomes  injurious  by  extraordinary  cir- 
cumstances,    --------56 

negligent  wetting  of  wool,   requiring  original  package  to    be 

opened,  whereby  return  of  duties  lost,  .  .  -  57 

frustrating  plan  for  special  use  of  team,  etc.,  by  wrongful  seizure,        58 
loss  of    board  of    passenger  excluded  from  ship,  voluntarily 
delaying  to  sue,  -------58 

injury  to  goods,  or  their  loss  by  flood  or  fire,  during  negligently 
delayed  transportation,  -----  59 

New  York  cases  of  that  kind,  -  -  -  -  59,  60 

loss  by  trustee's  deposit  in  a  bank  which  broke,  -  -  61 

the  rule  in  jure,  causa  proxima,  non  remota  spectatur,    -  32-46 

applied  in  insurance  cases,  -----  32 

in    Massachusetts,    to    statutory    liability    for    non-repair    of 
highways,        -------  -32 

in  suits  at  common  law,  causa  proxima  extends  to  natural  and 
probable  consequences,  -----  33 

one  cause  may  be  the  responsible  one,  though  it  be  one  of  several 
in  combination,  -------40 

it  must  be  the  efficient  cause,         -----       40-46 

when  sucli,  it  is  immaterial  what  other  causes  concur  or  co- 
operate without  the  plaintiff's  fault,  .  -  -  61-73 
the  i^rimary  may  be  the  proximate  cause,  though  it  operate 

through  intervening  agencies,  -  .  .  -  63 

the  act  of  the  injured  party  may  be  the  more  immediate  cause 
of  the  injury,  -------62 

as  where,  in  view  of  danger,  he  jumps  from  a  carriage,        -  63 

the  innocent  or  culpable  act  of  a  third  person  may  be  the  imme- 
diate cause  of  the  loss,  ------        64 

illustrated  by  the  noted  squib  case,         -  -  -  -        64,  65 

where  bystanders  increased  the  fright  of  runaway  horses,  -        65 

the  case  of  an  alterecj  assessment,  -  -  -  -  66 

acts  induced  by  slander,  ------        66 

yielding  to  malicious  solicitation,  -  -  -  -        49,  68 

turning  water  into  a  canal  into  which  a  careless  driver  had  pre- 
cipitated a  passenger,  ------       69 

otherwise  where  wrongful  act  of  tliird  person  was  only  remotely 
induced  by  defendant's  act,      -----  6T 

or  only  furnished  opportunity,  -      ,     -  -  -  -        70 

responsibility  for  property  lost  by  torts  of  third  persons,      -  70 


846  INDEX. 

CONSEQUENTIAL  DAMAGES  —  continued.  Pages. 
for  breach  of  contract,  such  damages  as  were  within  the  con- 
templation of  the  parties  when  contracting,  -  -  77-98 
effect  of  notice  of  special  circumstances,  -  -  -  80-84,  93 
rules  laid  down  in  Hadley  v.  Baxendale,  _  _  _  84 
adopted  in  this  country,  -  -  -  -  -  90,  91 
recovery  may  be  had  for  successive  consequences,      -  -            104 

CONTRACT  FOR  PARTICULAR  WORKS  — 

damages  for  failure  to  complete,  or  delay  in  completing,         -  109,  110 

for  stopping  the  work,              .            _           -           -            _  113-118 

may  recover  for  part  performance,          -           -           -           -  132 

for  preparations  to  perform,        --            -           -           -  -131 

duty  of  an  employer  to  remedy  slight  defects  to  lessen  dam- 

tges, 150 

recoupment  between  contractor  and  employer,       -           -  -      282 

CONTRACT  OP  SALE  — 

damages  on,  --           -           -           -  -           -           -75,  80-92 

vendor  against  vendee,            .           _           _  -           -       80-92,  107 

purchaser  may  recoup  for  vendor's  fraud,  -           -                277,  278 

for  breach  of  warranty,  express  or  implied,  -           -          '278,  283 

stipulation  of  damages  on,            _           -  _             506,  507,  518,  520 

interest  on  purchase  money,   -            -           -  -       592,  012,  613,  614 

CONTRACTS  TO  PAY  MONEY  — 

interest  and  other  damages  on,  _  _  -         128-130,  531 

when  banker  refuses  to  pay  check,     -----      129 
for  failure  to  pay  drafts  under  special  arrangements,  -  129 

failure  of  agent  furnished  with  money  to  pay  incumbrance,        -      129 
contracts  to  stipulate  damages  on,      -  -  -  -  492,  503 

agreements  to  pay  more  than  interest,    -  -  -  -  496 

agreements  to  pay  attorney's  fees  and  costs  in  case  of  default,    -      494 
in  case  of  public  undertaking,  .  _  _  .  -      495 

CX)NTINUING  OBLIGATIONS  AND  WRONGS    -  -  -  186 

contracts  of  indemnity,  .__---      190 

what  may  be  included  in  recovery,         -  -  -  -190,  191 

the  law  will  not  presume  a  continuance  of  a  wrong,  -  -      199 

necessity  of  successive  actions,    -----  202 

where  continuous  duty,  -----    187,  190,  202 

contracts  for  maintenance,  -----  203 

CONTRACTOR  — 

in   action  against,   it  is  a  mitigation  that    he  has    not    been 
paid,  _._.----  253 

CONVERSION  — 

value  and  interest,  measui'e  of  damages,      -  -  -  173,  174 

special  owner  naay  recover  according  to  his  interest,    -  -  210 

mitigation  by  return  of  property,      -  -  -  238-240 

damages  in  trover  assessed  on  equitable  principles,      -  -  240 

interest  recoverable,      -------      629 


INDEX.  8J:" 

CORPORATION—  Pages. 

liable,  Uke  natural  persons,  for  acts  of  agents,             -           -  750 

COSTS  — 

of  former  actions,  when  not  recoverable,      -           -           -           -  98 
recoverable  when  suit  proximate  result  of  defendant's  tort  or 

breach  of  contract,         ..----  106 
when  recoverable  against  indemnitor  or  warrantor,          -            135-147 

costs  paid  or  inciirx-ed  by  a  surety,          .           -           _           -  134 

under  wliat  circumstances  a  party  indemnified  may  incur  costs,  -  135 

on  bonds  and  undertakings  in  judicial  proceedings,     -           -  141 

on  contracts  made  by  one  falsely  claiming  to  be  agent,     -           -  140 

necessary  to  pay  in  paying  demand  after  suit  brought,           -  260 

COUNTS  — 

effect  of  general  verdict  where  one  of  several  counts  bad,           -  819 

COUNTERCLAIM,        ..-..--  261 

COURT  — 

has  power  over  verdict,            -           -           -           -           -           -  3 

may  set  aside  excessive  or  insufficient  verdicts,           -           -  810 

may  amend  informal  verdicts,            -----  809 

CREDIT  — 

injury  to,  from  failure  to  pay  check,      -           -           -           -  129 

injury  to,  remote  in  action  on  attachment  bond,    -           -           -  98 

CROPS  — 

for  preventing  the  raising  of  crops  by  removal  of  slaves,       -        24,  99 

failure  to  fulfil  contract  to  harvest,    -----  75 

failure  to  deliver  threshing  macliine,      -           -           -           -  99 

proof  of  the  value  of,  -           -            .            -           -           -           -  194 

opinion  of  qualified  witnesses  as  to  growth  of,             -           -  793 

duty  of  plaintiff  to  prevent  damages  by  closing  fence,      -          -  150 

CREDITOR  — 

may  extinguish  debt  by  gift,         -----  355 

liability  in  respect  to  collaterals,      -  -  -  -  879,  383 

application  of  payments  by,         -----  405 

when  made  debtor's  executor,  may  regain  his  debt,         -           -  357 

tender  to,      --------  443 

when  a  devise  to,  a  payment,              -----  354 

composition  with,  -------  430 

value  of  debtor  s  custody  to,  -           -           -           -           -           -  251 

CRIMINAL  CONVERSATION  — 

mitigation  in  action  for,           ------  254 

shght  intercourse  between  husband  and  wife,  -           -           -  254 

CURRENCY  — 

its  relation  to  money,    ------  321,  323,  325 

contracts  presumed  to  be  made  with  reference  to  the  currency 

of  the  place  of  contract,           -----  336 


848  mDEX. 

CUSTODY  — 

value  of,  to  judgment  creditor,         -----     251 

DAM  — 

indirect  benefits  from  mill  no  mitigation  of  damages,       -  -      243 

DAMAGES  — 

nature  and  purpose  of,       -  -  -  -  -  -  1-8 

certain  damages  governed  by  legal  measure,  -  -  -         3 

other  damages  left  to  discretion  of  the  jury  for  compensation  or 
punishment,  -  -  -  -  -  -  -  3,  4 

the  law  infers  some  damage  from  every  infraction  of  a  right,      -      2,  9 
damages  so  inferred  generally  indeterminate  as  to  amount,  2 

then  only  ground  for  nominal^damages,      -  -  -  2,  9-16 

nominal  damages,  -  -  -  -  -         '  -  9-16 

the  right  to,  absolute  when  a  right  has  been  violated,       -  -    2, 10 

the  court  may  add  them  by  amendment  to  verdict  for  plaintiff,        827 
what  must  concur  to  give  a  right  to  damages,        -  -  -  3 

damnum  absque  injuria,  -  -  -  -  -  -3,  4,  5 

injuria  sine  damno,       -------3 

the  law  gives  a  private  remedy  for  damages  only  for  private 
wrongs,      --------  6 

unless  there  is  a  special  injury,  -  -  .  -  -  6 

legal  quality  of  a  right  to  damages,        -  -  -  -  7 

of  the  nature  of  property,      ------  7 

protected  by  law,    -------  7 

excei)t  for  personal  torts,  it  survives,  -  -  -  -  7 

when  the  i"ight  to  damages  attaches,      -  .  -  -  7 

compensation,  cardinal  principle  of,  -  -  -  -        17 

the  right  to  compensation  extends  to  direct  damages,  -  19 

and  consequential  damages  which  are  natural  and  proximate,    -  18-73 
the  probable  consequences  of  toi't,  -  -  -  -  2I 

illustrations,                   -..--_•-  2l_73 
for  wilful  wrong  damages  given  with  liberal  hand,     -  -      71,  161 
increased  for  compensation  by  bad  motive  and  aggrava- 
tions,                  161,  726-738 

damages  in  such  cases  not  confined  to  compensation,  -    2,  3,  716 

exemplary  damages,     -------      716 

for  breach  of  conti'act,  damages  recoverable  which  were  con- 
templated by  the  parties,      ------  74-93 

required  certainty  of  damages,     -----       94-126 

elements  of  damage,    -------      127 

interest  for  detention  of  debt,     -----      128,  537 

full    compensation   for   failure    to  pay  money  under    special 
circumstances,  -------      128 

for   breach    of    other   contracts,   gains    prevented    and   losses 
sustained,  ._.----  130 

value  of  bargain  for  total  breach,      -  -  -  -  -      130 

in  proportion  for  partial  breach,  -  -  -  _  130 


INDEX. 


849 


DAMAGES  —  continued.  Pages. 

exceptions  on  contracts  relating  to  real  estate,       -  -  -      130 

profits,  when  recoverable,  -  -  .  .  113-131,  130, 132 

for  preparation  to  perform  contract  and  part  performance,         -      131 
losses,  recovery  for,  ---...      131-148 

for  wrongs  depriving  owner  of  property,  its  value  and  interest,  178,  174 
•  necessary  expense  to  recover  it,    -  -  -  -  -  106 

necessary  expenses  of  suits  resulting  from  wrongs,  -  -      106 

for    pain,    physical    and    mental,    from   personal    injury   and 

insult, 158,766 

for  breach  of  marriage  promise,  -  -  -  -        7, 156 

for  injury  to  business,  -  -  -  -  96,  98,  106,  126 


interest  on  pecuniary  items  of  damage, 

duty  of  plaintiff  to  lessen  and  prevent  damage, 

entirety  of  damages,  .... 

prospective  damages,  when  recoverable, 

necessity  to  include  all  in  one  action,     - 

continuing  obligations  and  liabilities, 

as  to  necessity  of  successive  actions  for, 

as  to  parties,       .  -  .  .  - 

legal  liquidations,  -  -  _  _ 

in  avoidance  of  circuity  of  action, 

by  mutual  credit  in  connected  accounts, 

by  mitigation  of  damages,      -  -  - 

by  recoupment  and  counterclaim, 

by  marshaling  and  distribution, 

by  set-off  of  judgments,    .  -  -  - 

conventional  liquidations,        ... 

payment,      .-..-. 

accord  and  satisfaction,  -  -  _ 

release,     *    - 

stipulated  damages,      -  -  -  - 

exemplary  damages,  -  -  -  _ 

statutorj'  damages,       -  .  -  - 

pleading  —  general  and  special  damages, 

ad  damnum,       =  -  -  .  ■ 

assessment  of  damages,     -  -  -  - 

evidence  of,        -  -  -  -  - 

opinions  of  amount  not  admissible, 

verdict  for,         .  -  .  -  . 

excessive  and  insufiicient  verdicts, 

must  be  certain,  .... 

judgment  for,         -  .  -  .  . 

restitution  on  reversal,  -  -  - 


629 

-  148 
175 

187-198 
175 

186-198 
202 

-  203 
220 

-  220 
224 

-  226 
261 

-  302 
311 

-  345 
345 

-  425 
433 

-  475 
716 

-  770 
759-770 
759-761 

771 

-  782 
782 

-  803 
810 

-  816 
827 

-  830 


DEBT— 

damages  for  detention  of, 
value  of,  in  foreign  cuiTency, 
Vol.  1  —  54 


128,  596 
341,  342 


850  INDEX 

DEBTOR-  Pages. 

his  right  to  apply  payments,        -----  399 

value  of  his  custody  to  creditor,  -----      251 

wheu  made  creditor's  executor,   -----  357 

when  debtor  made  administrator  of  creditor's  estate,        -  -      357 

may  pay  debt  by  legacy,    ------  354 

cannot  pay  debt  without  discharging  it,       -           -           -  -      352 

DEFAULT  — 

what  it  admits,        -  -  -  -  -  -  -     773-770 

DEMURRER  — 

what  admits,      -  -  -        '  -  -  -  -  773-775 

DEPRECIATED  CURRENCY, 333,  334 

DEVIATION  — 

liability  from,  laid  down  in  Davis  v.  Garrett,  -  _  -        60 

DIRECT  DAMAGES, 19 

absolute  responsibility  for,  in  cases  of  tort  and  contract,    -  -      19 

DISTRIBUTION, d02 

DISEASE  — 

suffering  animals  having,  to  go  at  large,      -  -  -  -        24 

physician  communicating  infection  to  customer,         -  -  281 

DOG  — 

damages  for  killing,      -------      803 

DOLLARS  — 

contracts  between  citizens  payable  in,    -           -           -           -  330 

when  contracts  made  in  foreign  country,  so  payable,        -  -      337 

made  in  insurgent  states,  ------  337 

ambiguity  in  the  word  there,  -----  337,  33s 

contract  payable  in,  may  require  payment  in  other  legal  cur- 
rency,       ..---.-.  454 

DOUBLE  DAMAGES, 826 

must  be  specially  claimed  in  declaration,  -  :  -  826 

jury  or  court  may  double  the  damages,        ....  826 

not  recoverable  by  general  verdict,  if  common  law  cause  joined,  826 

DRUGS  — 

liability  for  sending  into  market  mislabeled,     -  -  -         28,  73 

DUTY  — 

of  plaintiff  to  prevent  damages,        ----..      14s 

ELEMENTS  OF  DAMAGE  — 

elementary  limitation  to  natural  and  proximate  results,    -  -      127 
always  correlative  to  right  violated,        .            -            _           .  127 
injured  party  entitled  to  damages  which  will  place  him  in  as 
good  condition  as  if  contract  performed  or  wrong  not  com- 
mitted,              127,12s 


INDEX.  851 

ELEMENTS  OF  DAMAGE  —  continued.  Pages. 

interest  for  deferring  payment  of  moneys  due,  -  -  128 

greater  damages  than  interest  sometimes  recoverable  for  failure 

to  pay  money,  ._..._  128-130 

injury  to  credit  for  faihire  to  pay  check,  .  _  -  129 

injury  to  commercial  venture,  and  expenses  of  other  arrange- 
ments, by  failure  to  pay  drafts,      -----      129 

failure  to  disburse  money  to  pay  incumbrance,  -  -  129 

gains  prevented  by  total  or  partial  breach  of  contract,      -  -      130 

losses  sustained,      -------      131-158 

money,  property  and  rights  directly  lost  by  breach,  -  -      131 

expenditures  in  preparation  to  perfoi-m  contract,        -  -     131, 132 

part  performance,  besides  profits,      -  -  -  -  131, 132 

expenditures  in  expectation  of  performance,    -  -  -  133 

sums  necessarily  paid  to  third  persons,  -  -  -  .      134 

compensation  for  things  done  to  prevent  damage,        -  -     148, 156 

extra  expense  incurred  by  plaintiff  to  secure  benefits  of  contract 
after  defendant's  breach,      ------      155 

for  personal  torts,  loss  of  time,  and  ability  to  earn  money,  im- 
pairment of  faculties,  etc.,        -----  158 

distinctions  made  for  bad  motive,      -----      159 

on  contracts  relating  to  real  estate,         -  -  -  -  159 

on  quantum  meruit  claim  for  services,         -  .  -  -      16O 

in  cases  of  fraud  or  other  intentional  wrong,     -  -  -  161 

confusion  of  goods,      -  -  -  -  -  -  -163 

where  property  improved  by  wrongdoer,  -  -  -  164 

value  of  property  and  interest,  -  -  -  -  173, 174 

EMINENT  DOMAIN  — 

uncertain  damages  where  one  railroad  crosses  another,          -  110 

entu-ety  of  damages,    -           -           -           -           -           -  -191 

interest  allowed  on  assessment,    -----  604 

when  owner's  right  to  damages  assessed  absolute,             -  -      604 

ENTICING  — 

a  party  to  break  his  contract,      -----  49 

servants,  etc.,  to  leave  their  masters,  -  -  -        49,54,68 

ENTIRETY  OF  DAMAGES, 175 

the  damages  for  a  cause  of  action  not  divisible,      -  -  -      175 

all  to  be  claimed  in  one  action,  though  they  extend  into  the 
future,  --------      175 

effect  of  bringing  suit  for  part  only  of  entire  demand,  -      178-180 

what  is  an  entire  demand,        -  -  -  -  -  177,  183-190 

aU  the  damages  from  a  single  tortious  act  an  entirety,  -  196 

not  necessary  that  all  the  damages  accrue  before  suit,      -  -      187 

what  is  not  a  double  remedy,      -----  191 

prospective  damages,  -----        187,  190,  193,  197 
certainty  of  proof  of  future  damages,  -  -  -  -  105 

to  be  shown  with  reasonable  certainty,        -  -  -  -      196 


852  INDEX. 

ENTIRETY  OF  DAMAGES  —  continued.  Pages. 

future  damages  from  enticing  away  servants,  etc.,       -           -  196 

future  damages  from  personal  injuries,        -           -           -           -  197 

where  property  taken  for  public  use,      -           -           -           -  175 

present  worth  of  such  damages  given,         -           _           .           -  198 

parties  may  sever  an  entire  demand,      -           -            -           -  177 

what  will  be  a  severance  by  the  parties,       -            .            -           -  178 

contracts  to  do  several  things  successively,      -           -           -  178 

continuing  obligations,             .._-_-  186 

items  of  account,    -,-----  184 

entire  cause  of  action  for  total  breach  of  contract,            -           -  177 

for  future  delivery  of  property,  -----  176 

contracts  of  indemnity,           .--_--  190 

the  test  of  entii-ety,           -           -           -           -           -           -  183 

continuous  breach  of  contract,          -----  198 

several  claims  or  demands  on  one  contract,       -           _           -  178 

the  law  will  not  presume  a  continuance  of  wrong,            -            -  199 

nuisance  by  flooding  land,            .            -            .            -           _  202 

necessity  of  successive  actions,          -----  202 

one  instrument  containing  distinct  and  unconnected  covenants,  184 

parties  to  sue  and  be  sued,       ------  203 

damages  to  joint  parties  injured,  entire,           -            .            -  203 
they  must  be  sued  for  by  party  in  whom  the  legal  interest  is 

vested, 204 

not  joint  when  contract  apportions  the  legal  interest,            -  205 
implied  assumpsit  follows  the  consideration,           -            -            -  205 
several  persons  claiming  distinct  rights  cannot  join,  -            -  205 
where  cause  of  action  accrues  to  several  on  cotitract  it  is  an  en- 
tirety,    205 

how  joint  claim  may  be  severed,             .           -            -            -  205 

cannot  be  by  partial  assignments,      -----  205 

nor  by  one  of  several  jointly  entitled  to  sue  giving  a  release,  205 

effect  of  such  a  release,            ------  205 

its  effect  when  the  co-creditors  are  partners,     -            -           -  206 

effect  of  death  of  one,            ..._.-  206 

a  joint  demand  may  be  severed  by  consent,      -            -           -  206 

a  promise  by  debtor  to  assignee  of  part,       -           -           -           -  206 

when  misjoinder  of  plaintiffs  fatal,       -           -            -           -  206 

nonjoinder  of  a  party  who  should   join  as  plaintiff   in  action 

on  contract,     --------  206 

nonjoinder  as  co-plaintiff  in  tort,             -            .            .            .  207 

joinder  of  defendants;  effect  of  nonjoinder  and  misjoinder,        -  207 

survival  in  case  of  joint  promise,            .            .            -           -  207 

representative  of  deceased  cannot  be  joined,           -            -            -  207 

several  agreements  in  one  instrument,  -            -            -           -  208 

effect  of  joining  too  many  defendants  in  action  on  contract,      -  208 

effect  of  nonjoinder,          ------  208 

how  joint  liability  extinguished  or  severed,             -           _           -  208 


IXDEX.  85!'. 

ENTIRETY  OF  DAIVIAGES  —  continued.  Pages. 

principles  on  which  joint  right  or  liability  determined,         -  20'6 

tortious  act  not  an  entirety  as  to  parties  injured,  -            -           -  209 

separate  actions  by  part  owners,             ....  209 

actions  by  general  and  special  owners,         -           -           -           -  210 
in  one  suit  the  court  will  not  take  cognizance  of  the  separate 

claims  of  different  persons,  -  -  -  -  -  211 
joint  and  several  liability  for  torts,  -  -  -  -  -  211 
what  necessary  to  a  joint  liability  for  tort,  -  -  -  212 
joint  liability  of  several  parties  acting  without  concert  by  a  com- 
mon agent,  --.--_-  aijj 
joint  liability  for  making  a  drunkard,           -           -           -           -  21^ 

ESCAPE  — 

measm-e  of  damages,          ----__  247 

mitigation  in  action  for,           -._._,  247 

recovery  for,  does  not  relieve  debtor,    -           -           -           -  243 

EVIDENX'E, 782 

it  must  be  adapted  to  the  damages  claimed,  -  -  -  782 
the  amount  of  pecuniaiy  items  to  be  proved,  -  -  782,  785 
what  assumed  when  inquiry  of  damages  commences,  -  78;i 
burden  of  proof,  ---..._  733 
matter  of  discharge  or  reduction  to  be  shown  by  defendant,  784 
intendments  against  the  party  who  holds  back  evidence,  -  784 
intendments  against  party  by  whose  fault  uncertainty  exists,  784 
plaintiff  not  entitled  to  I'ecover  without  proof  on  the  presump- 
tion contra  spoliatoreni,  -...._  78*5 
witnesses  can  only  testify  to  facts,  except  as  experts,  -  785 
opinions  as  to  value  received,  ....  735,  795,  798 
opinions  on  matters  of  common  observation  and  experience,  786 
instances  of  the  admission  and  rejection  of  opinions,  -  -  788 
received  on  the  fact  of  intoxication,  imbecility,  insanity,  -  789 
on  questions  of  size,  time,  distance,  quantity,  -  -  789-792 
received  on  the  questions  of  handwriting,  identity,  -  -  789 
may  be  received  upon  mattei's  of  which  the  witness  has  knowl- 
edge, but  which  cannot  be  adequately  described,  -  -  787 
a  witness  cannot  be  permitted  to  give  an  opinion  upon  matters 

which  are  uncertain  and  cannot  be  a  part  of  any  experience,  -  798 

not  of  injury  from  a  competitive  business,        -           _           _  793 
a  witness  may  be  asked  as  to  the  probable  growth  of  crops;  also 

as  to  the  probable  amount  of  work  a  mill  would  do,      -           -  794 
a  witness  may  not  be  asked  for  opinion  of  the  amount  of  dam- 
ages,          .--.--..  794 
in  action  for  personal  injury  physician  may  be  asked  for  his 
opinion  from  examination  as  to  treatment  pursued  and  the 

effect, ^"     -  794 

on  proof  of  value,  testimony  of  market  prices,           -           -  795 

classification  of  staple  commodities,             -           .           _           _  795 


854  INDEX. 

EVIDENCE  —  continued.  Pages. 

witness  may  testify  of  market  prices  from  hearsay,    -  -  796 

market  value  at  a  particular  place  and  time,  how  proved,         796,  797 
may  be  shown  by  circumstances,  ....  797 

value   not    only  of   property  but  services  may  be  proved  by 

opinions,  -  -  -  -  -  --  -      798 

by  actual  sales,      -  -__.--  799 

by  elements  of  value  where  there  is  no  market  value,       -  -      800 

proof  of  the  value  of  dogs,  ...  -  -  803 

grounds  of  opinion  should  be  given,  _  -  _  -      803 

EXEMPLARY  DAMAGES, 3,  3,  710 

comj^ensation  increased  for  wrongs  done  with  bad  motive,  -      716 

or  accompanied  by  insult,        .....  786,  735,  743 
damages  given  beyond    compensation    for  wrongs  done  with 

malice,      -.------  717 

maintained  in  Kentucky,         ..----      717 

was  formerly  in  New  Hampshire;  not  now  for  wrongs  which  are 

criminal  offenses,  ......  717 

maintained  in  a  majority  of   the    states,   and  sanctioned  by 

supreme  court  of  the  United  States,  _  .  -         719-733 

in  what  cases  allowed,       ..----     718-735 
in  some  states  confined  to  liberal  compensation  for  aggravated 

wrongs, 726-739 

the  difference, 722,  736,  737 

the  scope  of  exemplary  damages  in  Michigan,        .  -  -      734 

refused  in  New  Hampsliire,  .  .  -  -  -  739 

in  Massachusetts,  Indiana  and  Nebraska,     ...  732-734 

diversity  of  opinion  where  the  wrong  punishable  as  a  criminal 

offense,      ........  738 

the  technical  grounds  on  which  double  punishment  justified, 

738,  739,  741 
the  objections  to,  stated  by  Foster,  J.,   -  -  -  -     719,  729 

the  objection  is  that  there  is  a  repetition  of  punishment,  739,  741 

not  removed  by  one  being  a  i^ecuniary  mulct  for  the  benefit  of 

the  injured  party,       ....---      743 
exemplary  damages  cannot  be  claimed  as  matter  of  right,     -  743 

their  allowance  left  to  the  discretion  of  the  jury,  -  734,  743 

but  excessive  verdicts  for,  may  be  set  aside,     .  -  -  743 

w^hat  may  be  proved  to  obtain  or  enhance  these  damages,  719-729 

all  the  facts  and  circumstances,  .  _  -  -  -      724 

gross  negligence  dangerous  to  persons,  -  -  -  -  719 

aggravated  misconduct  or  lawless  acts,        _  _  -  -      730 

in  slander,  libel,  seduction,  ...  -  -  720 

where  the  defendant  acted  recklessly,  wilfully  or  maliciously 

to  iijjure, 717,  720,  724 

in  cases  of  outrage  and  oppression,  vindictiveness,  -  -      717 

the  social  standing  of  f)arties,  and  wealtli  of  defendant, 

743,  744,  745,  740 


INDEX.  855 

EXEMPLARY  DAMAGES  —  continued.  Pages. 

allowed  to  induce  wrongdoer  to  desist,  -  -  -  -  717 

and  to  deter  others,       -  -  -  -  -  -  -717 

as  a  punishment  and  a  warning,  .  -  -  -  737 

for  correcting  social  abuses,    -----.      719 

for  punishnieat  and  example,       .  -  -  -         720,  731,  723 

an  amovmt  allowed  beyond  compensation  for  these  objects,        -      723 
object  of  proving  defendant's  wealth,    -  -  -  -  744 

not  allowed  in  Iowa,     -------      745 

bad  motive  not  itself  a  tort,         -----  748 

Avhat  may  be  shown  to  prevent  or  reduce  these  damages,  -      747 

advice  of  counsel,  -------  747 

counsel  must  be  entitled  to  act  as  such,        -        '    -  -  -      747 

provocation,  -------  748 

if  actual  injury  trivial,  there  is  no  ground  for  exemplary  dam- 
ages,    ---------      748 

where  several  participate  in  the  wrong,  and  only  one  from  bad 

motives,  he  alone  subject  to  these  damages,  -  -  -  749 

parties  liable,      --------      749 

master,  for  act  of  servant,  when,  -  -  -  -  749 

corporation  liable  like  natural  person,  -  -  -  -      750 

diversity  of  opinion  as  to  extent  of  liability  of  corporation,       751-758 
municipal  corporations  not  liable  to,  -  .  -  .      758 

may  be  recovered  against  public  officers,  -  -  .  758 

not  recoverable  against  estate  of  deceased  wrongdoer,     -  -      758 

EXPENSES  — 

of  recovering  property  tortiously  taken,      -  -  -  28,  IOC 

of  suits  recoverable  when  suit  necessary  consequence  of  defend- 
ant's wrongful  act,  ------  106 

against  party  bound  to  indemnify,    -  -  -  -  134-147 

of  suits  which  are  result  of  defendant's  breach  of  contract  or  tort,       142 
mitigation  for  return  of  property  diminished  by,        -  -  239 

when  expense  of  keeping  horses  must  be  alleged,  -  -  -      764 

the  law  does  not  imply  expenses  for  attorney  to  obtain  discharge 
from  imprisonment,       -  -  -  -       .    -    -       -  766 

EXPERTS  — 

testimony  of, 786-794 

EXTRAORDINARY  CIRCUMSTANCES  — 

no  recovery  when  injury  arises  from,     -  -  -  -  65 

EXCESSIVE  DAMAGES  — 

verdict  for,  will  be  set  aside,  ------      810 

objection  for,  may  be  removed  by  remittitur,  -  -  -  813 

EXECUTION  LIEN  — 

will  be  discharged  by  tender,  ------      47:* 


856  INDEX. 

EXECUTOR—  Pages. 

de  son  tort  may  mitigate  damages  by  showing  payment  of  debts 

of  the  deceased,  -------  240 

cannot  retain  for  his  own  debt,  -----  358 

when  debtor  made  executor,  a  release,  -  -  -  -  357 

not  a  release  in  equity,  -  -  -  -     "      -  -  357 

may  retain  for  his  debt,     ------  357 

FALSE  IMPRISONMENT  — 

advice  of  counsel  in  mitigation,          -----  237 
not  a  mitigation  that  defendant  acted  on  instruction  of  em- 
ployer,         237 

officer  may  arrest  for  felony  on  suspicion,    -            -            -           -  256 

what  special  injury  not  implied  and  must  be  alleged,              -  766 

on  default  what  defendant  not  allowed  to  show,     -            -            -  778 
FALSE  REPRESENTATIONS  — 

person  making,  liable  to  make  them  good,        -            -           -  30 

of  receipts  from  property  being  negotiated  for,      -           -           -  68 

FEELINGS  — 

no  recovery  on  contracts  for  injury  to,   -  -  -  78,  100,  105 

law  implies  injury  to,  in  cases  of  personal  injury  and  insult,       -      766 
may  be  the  principal  element  of  injury  —  when  considered,  -   734,  735 

FENCES  — 

consequential  damages  from  defects  in,        -  -  -  -        25 

for  leaving  open,       -  -  -  -  -  -  -       25,  47 

duty  of  plaintiff  to  prevent  damages  by  repairing  or  closing 
fence,   ----,----      150 

FERRY  — 

damages  on  covenant  to  maintain,  -  -  -  -  98 

FINE  — 

no  interest  recoverable  on,      ------      598 

FIRE  — 

consequential  damages  for  negligently  setting,            -           -  27 

for  preventing  extinguishment  by  cutting  hose,      -           -            -  30 
loss  of  houses  pulled  down  to  prevent  spread  of,  damnum  absque 

injuria,       --------  6 

when  recovery  allowed  for,  exposure  considered,   -            -           -  236 

FISHERY- 

the   law  infers   damage  for   unauthorized  fishing    in    several 
fishery,       --------  12 

FLOOD  — 

the  law  implies  some  damage  from  flowage  of  land,  -  -        12 

damages  from,  in  consequence  of    removing  earth  from  bank 

which  was  a  barrier,       ------  27 

loss  of  goods  from,  by  carrier  delaying  transportation,     -  59,  60 

defendant  may  show  in  mitigation  that  injury  would  otherwise 

have  come  from  same  flood,      -----  245 


INDEX.  bo  I 

FLUCTUATIOI^S—  Pages. 

in  value  of  money,        ------  324-338 

FORBEARANCE  — 

consideration  for,  payment  of  interest  for  compensation,      -  531 

FOREIGN  DEBT  — 

how  payable,      --------      821 

amount  recoverable  on,      ------    341,  342 

FOREIGN  CURRENCY  — 

how  treated,        -------  319,  B^o 

how  value  of,  ascertained,  -----  340 

FOREIGN  JUDGMENT  — 

interest  on,         --------      602 

FOUNDATION  — 

of  building  —  negligently  undermining,  -  -  -  25 

disturbance  of  lateral  support  not  actionable,  when,  -  -  3 

FRAUD  — 

false  pubUc  representation,  liability  to  any  party  deceived  and 
injui'ed,     --------  go 

in  sale  of  real  estate  —  improvements  made,  -  -  -        30 

falsely  assuming  to  be  an  agent,  -  -  .  -  31 

falsely  representing  condition  of  corporation  to  prevent  attach- 
ment,   ---------52 

damages  for,  in  sale,  may  be  recouped  in  action  for  purchase 
money,- 277,278 

FREIGHT  — 

See  Recoupment  and  Counterclaim,        -  -  -  -     281 

FRIVOLOUS  SUIT, 13,  14 

FRUIT  ORCHARD  — 

damages  depending  on  growth  of,     -  -  -  -  -112 

FUTURE  DA^klAGES,  .  .  -  .  137,  190,  193,  197 

GARDEN  SEEDS  — 

damages  on  warranty  of ,         -  -  -  -  -  -111 

GAS  PIPE  — 

damages  for  negligently  laying,  -----  25 

GENERAL  ISSUE  — 

payment  may  be  proved  under,  for  mitigation,      -           -  -      260 

not  for  a  complete  defense,           -----  389 

mitigation  in  slander  under,    -----  232-23(5 

GOLD  — 

a  legal  tender  currency  of  United  States,  -  -  -  328 

GOOD  AND  BAD  FAITH  — 

distinctions  made  for  bad  motive,      -----      159 
in  plea  of  justification  in  slander,  -  -  -  -  23-5 


S5S  INDEX. 

GOODS—  ,  Pages. 

proof  of  value  of,         ------  -      795 

evidence  to  classify,  ------  795 

how  right  to  recover  for  destruction  of,  by  mob,  affected  by 
plaintiff's  negligence  in  not  apprising  officers  of  the  danger,   -      154 

GOOD  WILL  — 

loss  of,  to  a  tavern  stand,  wlien  an  item  of  damage,  -           -              98 

stipulations  fixing  damages  in  contracts  relating  to,  -           -      507 

opinions  incomi^etent  as  to  damage  of  railroad  to,  -           -            793 

GRIFFIN  V.  COLVER  — 

profits,  when  recoverable,             -           -           -           -           -  93,  94 

rule  of  damages  contemplated,          -           -           -           -  -       94 

certainty  of  damages,        ------  94 

GROSS  NEGLIGENCE  — 

as  to  exemplary  damages  for,  _  _  -  -    719,  72I,  73 

GROUNDLESS  SUIT  — 

no  damages  for,  if  not  maliciously  prosecuted,  -  -  4 

GUNPOWDER  — 

consequential  damages  for  negligently  keeping,     -  -  -       29 

HADLEY  V.  BAXENDALE  — 

rules  of  damage  laid  down  in,     -  -  -  -  -  79,  84r-90 

HARBOR  LIGHT  — 

damages  for  removing,  -  -  -  -  -  -       28 

HIGHWAYS  — 

consequential  damages  from  non-repair  of,        -           -  -  31,  36-46 

HORSES  — 

liability  for  damages  done  when  they  run  away,  -  21,  23,  65 

damage  done  by,  according  to  their  natural  inclination,          -  53 

when  done  contrary  to  their  ordinary  habit,             -  -           -       53 

damage  for  injurj^  to,          -----  -           100 

IDIOT  — 

anybody  may  make  tender  for,           -           -           .  -           _     449 

IDENTITY  — 

of  property  when  lost  by  wrongdoer's  act,         -  -  -    164,171 

proof  of,  by  opinions,   -------     789 

ILLEGAL  ACTS  — 

consequential  damages  for,             -----  71 

illegal  arrest,  daniages  for,  how  mitigated,  -           -           -  -     227 

for  illegal  seizure  of  goods,            .           -           -           _           -  238 

ILLNESS  — 

damages  for,  include  pain  and  expenses,       -           -           -  158,  159 

not  recoverable  for,  when  caused  by  breach  of  contract,  -     78,  l02 

but  for  pecupiary  consequences  recovery  may  be  had,       -  -      104 


INDEX.  859 

IMPLIED  CONTRACT—  Pages. 

as  to  parties,  follows  consideration,    ------     205 

INCONVENIENCE  — 

recovery  for,  as  an  item  of  damage,        -  -  -  78,  102,  157,  158 

caused  to  riparian  owner  by  pollution  of  stream  running  tlu'ougli 
farm,  --....._       96 

INCUMBRANCE  — 

what  not  an  expense  recoverable  on  covenant  against,  -  95 

damages  for  failure  to  fullil  contract  to  discharge,  -  -      129 

damages  on  warranty  against,       -----  765 

what  must  be  alleged  in  action  on  the  covenant  against,    -  -     765 

INDEMNITY  — 

measure  of  recovery  on,  and  how  determined,  -  -  -    135-147 

effect  of  judgment  recovered  against  indemnified  party,  -  -      185 

when  notice  to  principal  to  defend  materal,        -  -        135,  142-147 

when  indemnified  party  may  recover  for  costs,       -  -  -      136 

in  case  of  disputable  or  unhquidated  claim,        -  -  -  136 

the  course  taken  by  indemnified  party  must  be  reasonable, —  his 
defense  judicious,      ------ 

recovery  of  attorney  fees  as  part  of  costs, 

distinction  recognized  in  Massachusetts,        -  -  - 

what  a  warrantee  may  I'ecover  after  being  put  to  costs,  - 

rule  in  favor  of  party  made  liable  for  another's  tort,  in  recovery 

over  against  wrongdoer,       -  .  -  .  . 

right  of  indemnitor  to  direct  as  to  defense, 
up  to  what  time  damages  may  be  computed, 

INFANT  — 

who  may  make  a  tender  for,  -----  449 

INJURY  — 

compensation  equal  to,  the  cardinal  rule,       -  -  -  17,  18 

duty  of  plaintiff  to  exert  himself  to  lessen,       -  -  -    148,  288 

increase  of,  by  plaintiff's  voluntary  act  or  negligence,  matter  of 
mitigation,       --------     237 

INQUIRY  OF  DAMAGES, 771 

when  properly  entered  upon,   ------     783 

INSANITY  — 

proof  of,  does  not  require  experts,  -  -  .  -  789 

INSOLVENCY  — 

of  execution  debtor  as  mitigation  of  damages  for  escape,  -     246 

when  creditor  may  apply  payment  on  debts  for  which  he  holds 
collaterals,  in  case  of  insolvency  of  debtor,    -  -  -  280 

INSUFFICIENT  DAMAGES  — 

verdict  for,  may  be  set  aside,  ------     810 

INSURANCE  — 

money  from,  received  by  injured  party,  not  to  be  considered  in 
mitigation,  --.-..-  243 


136, 

140 

138, 

139 

- 

138 

140- 

-142 

y 

137, 

138 

136, 

137 

- 

190 

SGO  INDEX. 

INTEREST—  Pages. 

measure  of  damages  for  delay  in  payment  of  money,        -  -  128 

on  value  of  property,  part  of  measure  of  damages,      -  -  174 

general  payment  applied  to  interest-bearing  debt,  and  first  to 

interest,  -  -  -  -  -  -  -  -421 

agreements  to  pay  more  than  interest  for  failure  to  pay  money,  49(5 

definition,      --------  531 

past  use  of  money,  valid  consideration  for  promise,  -  -  531 

relation  of  principal  and  interest,  -  .  _  .    533^  675 

tender  will  not  stop  interest  before  debt  due,  -  -  -  532 

when  interest  due,  it  may  be  recovered,  though  principal  not  due,  532 
interest  as  damages'foUows  principal,      -           -           -           -    534,  677 

recoverable  of  right  as  damages,        -----  534 

interest  by  the  early  common  law,  -  -  -  -  535 

legalized  by  early  English  statutes,    -----  535 

present  English  statute,      ------  536 

interest  at  common  law  in  America,  -  .  -  -  536 

agreements  for  interest,      ------  537 

promises  to  pay  "  with  interest,"        -----  539 

liberally  construed,  -------  539 

law  or  custom  fixes  rate  of  interest,  -----  541 

legal  or  stipulated,  applies  from  date,      -  -  -  -  541 

same  rate  generally  runs  after  maturity,      -  -  -  -  542 

where  it  does  not,  if  stipulated  above  ordinary  rate,    -  -  549 

agreements  for  interest  until  principal  paid,  .  -  -  553 

binding  until  debt  paid  or  put  in  judgment,       -  -  -  553 

parties  cannot  stipulate  for  more  than  ordinaiy  legal  rate  after 

maturity  in  Minnesota,    ------  554 

contracts  for  an  increased  rate  after  default,  -  -  .  555 

question  whetlier  increased  rate  a  penalt}',         -  -  .  555 

damages  cannot  be  liquidated  for  non-payment  of  raoney  so  as 

to  evade  statute  against  usury,         -----  556 

agreed  rate  above  what  the  law  allows,  a  penalty,        -  -  556 

within  the  legal  limits  parties  may  agree  upon  a  reasonable  rate 

of  interest  as  damages,  ------  556 

effect  of  usury  found,         -.--._  561 
it  is  deemed  equitable  that  the  debtor  pay  the  debt  and  legal  in- 
terest,   ---------  562 

who  may  take  advantage  of  usury,  -  -        -  -  562 

plea  of  usury  not  favored,        ------  561 

computation  under  usury  statutes,  -  -  -  .    571-576 

agreements  for  more  than  legal  rate  after  maturity,  -  -  576 

they  stipulate  a  penalty  or  liquidate  damages,   -  -  -  577 

when  debtor  relieved  in  lUinois,         -  -  -  -  -  578 

interest  as  compensation,    ------  581 

by  tacit  agreement  on  accounts,  -----  582 

quantum  meruit  claim  for  interest,         -  -  -  -  586 

allowed  on  money  lent,  ------  537 


INDEX.  8G1 

INTEEEST  —  continued.  Pages. 

allowed  on  money  paid,      ------  588 

on  money  advanced  by  surety,  partner,  trustee,  etc.,          -           -  589 

between  vendor  and  purchaser,     -----  293 

interest  allowed  from  the  time  money  ought  to  be  paid,    -           -  596 
right  to  interest  as  damages  extinguished  by  payment  of  prin- 
cipal,    ---------  60n 

allowed  generally  on  liquidated  sums  overdue,              -           -  590 

not  allowed  on  statutory  penalties,     -----  598 

may  be  recovered  on  liquidated  damages,           -           -           -  598 

not  included  in  revival  of  judgment  by  sci.  fa.,      -           -           -  605 

allowed  on  sums  due  for  rent,       -----  606 

so  if  payable  in  services  or  property,             -           -           -           -  607 

allowed  on  annuities  and  legacies,            -           .           _           -  COS 

recoverable  on  moneys  due  on  policies  of  insurance,          -           -  609 

not  allowed  on  unliquidated  damages,     -            -            -            -  610 

when  "demand  unliquidated  so  as  to  exclude  interest,         -           -  610 

discussion  of  this  point  by  Bronson,  J.,  -           -           -           -  611 

same  by  Johnson,  J.,-           -           -           -           -           -           -  613 

interest  on  accounts  as  damages  for  delay  of  payment,            -  615 
why  refused  on  running  accounts,      -           -           -           .          615,  618 

when  demand  of  payment  necessary,      -           -           -           -  619 

when  allowed  as  money  had  and  received,    -           -           -           -  621 

when  allowed  against  agents  and  tnistees,         -           -           -  623 

on  money  obtained  by  extortion  or  fraud,     -           -           -           -  628 

mere  depositary  or  stakeholder  not  liable  for,    -           -           -  622 

interest  as  damages  for  torts,              .           -           _           _           .  639 
law  of  what  place  and  time  governs,       -           -           -           -    630,  663 

allegation  and  proof  of  foreign  law,  -----  664 

effect  of  change  of  the  law  of  the  place  of  contract,   -           -  666 
interest  as  an  incident  to  the  principal,         -           -           -          675,  077 

interest  due  by  agreement,  a  debt,            -           -           -           -  675 

interest  upon  interest  —  compound  interest,             .           _           -  678 

instances  of  interest  upon  interest,          -           -           -           -  679 

interest  on  instalments  of  interest,     -----  680 

separate  agreements  for  interest,              -           -           -           -  682 

periodical  interest  after  maturity,      -----  684 

computation  —  application  and  effect  of  partial  payments,     -  686 

suspension  of  interest,              ...--.  691 

by  judicial  proceedings,      ------  693 

by  war,     ---------  695 

by  tender, ,-698 

by  offer  to  pay,  less  than  tender,        -----  698 
how  interest  must  be  claimed  in  pleading,          -           -           -    705,  763 

interest  on  verdicts  before  judgment,            -           .           -           -  708 

on  judgment  pending  review  in  appellate  court,           -           -  711 

INTERMEDIATE  DAMAGE  — 

between  wrongful  taking  and  return  of  property  chargeable  to 
the  wrongdoer,  ...----     239 


862  IKDEX. 

INTOXICATION—  Pages. 

who  jointly  liable  for  causing  habitual,  -            -           -           -  210 
JUDGMENT  — 

when  judgment  against  plaintiff  evidence  against  ofie  bound  to 

indemnify  him,           -.._--          142,  143 
effect  of  seasonable  notice  to  defend,       _           -           -            -    142-144 

may  be  paid  to  attorney  who  obtained  it,      -           -            -           -  387 

judgment  lien  will  not  be  dischai'ged  by  tender,            -            -  472 
the  money  must  be  paid  into  court  and  judgment  discharged  of 

record,             ._.....-  472 

interest  on,   --------  592 

not  included  in,  Avhen  revived  by  sci.  fa.,     -            -           -           -  605 

interest  on,  pending  review  in  appellate  court,              -           -  711 

definition,            .--..---  827 

must  follow  the  verdict,     ------  828 

what  additions  may  be  made  from  data  in  the  record,        -    ,       -  828 

must  be  certain,       -------  828 

should  state  the  amount  precisely  and  in  the  denominations  of 

the  lawful  currency, 828,  829 

in  words  at  full  length,       ------  829 

JOINT  OBLIGATIONS  OR  LIABILITIES,       -  -  -  203-219 

principles  on  which  determined,   -----  208 

how  extinguished  or  severed,  ------  208 

joint  and  several  liability  for  torts,           -           -           -           -  211 

owners  of  cattle  joining  to  do  damage,         -           -           -           -  215 

independent  acts  concurring  in  effects,   -           -           -           -    315,  216 

JURY  — 

when  jury  must  be  called  to  assess  damages,           -           -           -  772 

when  new  juiy  may  be  sworn  to  assess  damages,          -            -  780 

jury  tam  quam,              ._--_-.  779 

deliberations  of,        ------           -  803 

not  bound  to  yield  their  judgment  and  adopt  opinions  of  wit- 
nesses,              ..------  803 

may  provisionally  take  arithmetical  average,     -            -           -  803 

prior  agreement  to  adopt  it  as  a  verdict  vitiates  a  verdict  so  made,  803 

what  affidavits  may  or  may  not  be  read  to  affect  the  verdict,  804 

when  the  duties  of  a  jury  ended,        -----  806 

they  must  affirm  their  verdict  in  court,  -            -            -           -  807 

the  court  may  direct  them  to  seal  verdict,    -           -            -           -  807 

exemplary  damages  are  in  the  discretion  of  the  jury  when  the 

question  of  their  allowance  submitted,            .            -            -  742 
damages  for  compensation  -w^hen  there  is  no  legal  measure,  re- 
ferred to  discretion  of  the  jury,      -----  2 

LANDLORD  AND  TENANT— 

matters  of  mitigation  against  r*nt,     -----  255 

involuntary  payments  in  exoneration  of  landlord,        -           -  255 

recoupment  between,    -------  285 

damages  stipulated  for  failure  of  tenant  to  surrender  possession,  509,  517 


INDEX.  80;"! 

LATERAL  SUPPORT—  Pages. 

the  right  of  land-owners  to,     -  -  -  -  -  -         3 

LEGAL  TENDER  — 

contracts  payable  in  such  money,             -           -                       -  320 

what  contracts  payable  in,       -----  -     322 

Legal  Tender  Law,  1863, 320 

tender  must  be  made  in  such  money,            .           .           _  _     453 

LIABILITY  — 

when  an  element  of  damage,        -  -      '    -  -  -  142,  195 

LIBEL  — 

See  Slander  and  Libel. 

LIEN  — 

courts  favor  liens,          ---.__-  225 

when  they  are  recognized,              _____  225 

attorney's  lien,    --------  316 

damages  for  failure  to  perform  contract  to  discharge,              -  129 

LIFE  — 

presumption  that  it  continues,  _  -  _  _  _      197 

LIQUIDATED  DAMAGES, 475 

See  Stipulated  Damages. 

LIQUOR  — 

joint  liability  of    parties    contributing    to    produce    habitual 
dnmkenness,  -  -  -  -  -  -  -21(> 

LOSS  — 

actual  loss,  measure  of  compensation,    -  -  -  -  17 

MAINTENANCE  — 

contracts  for,  entire,     -------     30:i 

as  they  impose  continuous  duty,  there  may  be  succession  of 
actions,      --------  303 

entirety  of  wrong  which  destroys  security  for,        -  -  -      ISS 

MALICE  — 

not  itself  a  tort,  but  makes  a  bad  act  worse,      -  -  -  74:^ 

plea  of  justification  in  slander  not  maintained,  pi'oof  of,  -      233 

proof  that  acts  done  under  advice  of  counsel,  to  rebut,  -  237 

MALICIOUS  INJURY  — 

compensation  with  liberal  hand  given  for,    -  -  -  71,  161 

See  Exemplary  Damages,           -          -          -          -          -  716 

MALICIOUS  PROSECUTION  — 

mitigation  in  actions  for,         -----_  237 

advice  of  counsel,    -------  237 

instruction  of  employer,         _----_  237 

MANDAMUS  — 

recoupment  in,         ------  -  286 


S6i  Index. 

jMARRIAGE  promise—  Pages. 

what  not  mitigation  of  damages,       -----  136 

suits  for  breach  of,  involve  other  than  pecuniary  elements,    -  156 

opposition  of  family  may  be  proved  in  mitigation  of  breach,      -  244 

that  defendant  affected  with  incurable  disease,             -           -  344 

want  of  affection  a.s  mitigation,          -----  244 

declarations  of  plaintiff  that  she  consented  to  marry  defendant 

only  for  his  money,          ------  254 

that  plaintiff  unchaste,             ._-__-  254 

MARSHALING, 302 

where  incumbered  property  sold  in  parcels  to  different  pur- 
chasers at  different  times,    ------  302 

sale  subject  to  incumbrance,          -----  303 

effect  of  creditor  releasing  a  part,       -----  305 

rights  where  one  creditor  may  resort  to  two  funds  and  another 

to  only  one  of  them,        ------  305 

same  when  the  funds  belong  to  separate  debtors,     -            -            -  308 

principle  on  which  priority  determined  between  creditors,      -  310 

MASTER  — 

damages  for  injury  to  servant,            -----  197 

for  enticing  away  servant,            -            -            -             -     49,  54,  68,  196 

recoupment  in  action  for  wages,        -            -            -            -          279,  280 

liquidation  of  damages  in  action  for  wages,       -           -           .  510 

what  not  matter  of  mitigation,          -----  54 

MEASURE  OF  DAMAGE— 

actual  loss,     --------  17 

interest  for  detention  of  debt,             .           -           .           .           .  i28 
other  damages  for  failure  to  pay  money  under  special  circum- 
stances,     --------  128 

for  total  breach  of  contract,  its  value,          -           -           -           -  130 

the  losses  sustained  and  gains  prevented,            -            -            .  130 

exception  in  conti-acts  relating  to  lands,        -            -            -           -  130 

in  trover  and  trespass,  value  of  property  and  interest,            -    173,  174 
same  rule  whenever  property  lost  to  owner  by  breach  of  contract 

or  tort, 173,  174 

elements  of  damage  in  action  for  personal  tort,           -           -  158 

MECHANIC'S  LIEN  — 

will  be  discharged  by  tender,             -           _           -           -           _  471 

MEDICINE  — 

consequential  damages  for  ship-owner  not  providing,  as  required 

by  statute,              .-..---  30 

MENTAL  SUFFERING  — 

compensation  allowed  for,  in  actions  for  personal  injury, 

156,  732,  734r-736 

MESNE  PROFITS  — 

mitigation  in  action  for,      ------   254,  255 


Index.  8C5 

MINISTERIAL  OFFICER—  Pages. 

how  liable  to  damages  for  neglect,     -----  246 

MISJOINDER  OF  PARTIES, 203-216 

MITIGATION  OF  DAMAGES, 226 

matters  of  excuse  or  tending  to  justify,  -  -  -  227 

words  of  provocation  may  mitigate  assault  and  battery,   -  -  227 

when  such  words  lose  mitigating  effect,  ...  228 

facts  which  explain  and  negative  presumptions  from  conduct,     -  228 

that  parties  fought  by  agreement,  ....  229 

that  the  parties  mutually  impugned  veracity,  .  -  -  229 

extent  of  mitigation  from  provocation,  ....  229 

Judge  Story's  views,      -..-.--  229 
mitigates  actual  and  not  merely  exemplaiy  damages,               -    229,  230 
the  cause  of  arrest  may  be  shown,     ...           -          227,  231 
in  cases  of  libel  and  slander,         .....    231,  33j 

as  to  the  matter  of  pleading  to  mitigate  damages  in  cases  of  def- 
amation, ......        232-230,  258-260 

statutes  in  aid  of,     -  -  -  -  -  -  -  236 

acts  of  plaintiff  enhancing  injury,     .  .  -  -  -  237 

or  his  neglect  to  exert  himself  to  lessen  damages,         -  -  237 

acts  of  plaintiff  and  others  diminishing  loss,  ...  238 

wrong  of  taking  goods  mitigated  by  their  return,        -  -  239 

or  sale  on  execution  for  owners  debt,  ....  238 

mitigation  diminished  by  trouble  and  expense  of  procuring  re- 
turn, ........  239 

where  owner  bought  the  goods  at  tortious  sale,       -  -  .  238 

offer  to  return  goods  of  no  avail,  ....  2d0 

for  wrongful  sale  for  tax,        ......  241 

to  sheriff  who  sold  on  execution  without  notice,  -  -  241 

subsequent  attachment  by  wi-ongdoer,  ....  241 

no  abatement  where  compensation  from  collateral  or  independ- 
ent source,             ..-..-.  242 . 
insurance  money  no  mitigation,          _           -           .           .           .  043 
debtor  not  relieved  by  recoveries  for  negligence  against  attorneys 

or  officers,  .......  243 

nor  is  accidental  or  indirect  benefit  to  plaintiff  from  the  wrong  a 

mitigation,       -...--..  243 
wrong  of  delaying  ship  not  mitigated  by  plaintiff's  getting  addi- 
tional profit  thereby  from  another  boat,           ...  243 
benefit  from  nuisance,  .-----          243,  245 

concurrence  of  other  causes,         .....  245 

offer  to  marry  no  mitigation  of  master's  action  for  seduction  of 

servant,  ........  244 

mitigation  by  fuller  proof  of  res  gestae,  .  -  -  .  244 

by  proof  showing  defendant  less  culpable,   -  -  -  -  244 

opposition  of  family  as  mitigation  of  breach  of  marriage  prom- 
ise,    -  -  244 

Vol.  1—55 


86G  INDEX. 

MITIGATION  OF  DAMAGES  —  continued.                                          Pages. 
that  defendant  was  afflicted  with  incurable  disease,           -           -  244 
defendant  in  trespass  may  show   title  in  himself    in  mitiga- 
tion,    -            -            -            -            -            -            -            -          244,  260 

officer  may  show  he  entered  to  make  levy  when  sued  for  tortious 

entry  of  house,     ----_.-  244 

may  be  shown  that  some  damage  would  occur  in  another  way 

from  flood,       --------  245 

in  action  for  negligence  it  may  be  shown  there  was  none,       -  245 

may  show  partial  want  or  failure  of  consideration,            -           -  245 

matter  of  recoupment  only  mitigation  in  England,      -           -  245 
neglect  of  officers  to  collect  a  debt  mitigated  by  showing  debtor 

insolvent,          -.-_----  246 

not  that  debt  still  collectible,          -----  247 

the  contrary  in  some  cases,      ------  247 

mitigation  in  action  for  escape,     -----  249 

consent  of  plaintitT,  though  not  properly  given  for  its  purpose,    -  252 

conduct  of  plaintiff  impairing  right  to  compensation,             -  253 

his  bad  character,  when  a  mitigation,           -            -            -            -  253 

whatever  diminishes  defendant's  benefit,            -            -            -  254 

payment  of  ground  I'ent  of  premises  tortiously  occupied,             -  254 

may  matters  pleadable  in  bar  be  proved  in  mitigation,             -  255 

payments,            -            -            -            -           -            -            -          255,  260 

proof  in  mitigation  on  assessment  of  damages,             -           -  255 

notice  of,  in  pleading,  when  necessary,         .            -           -            -  257 

when  not  pleadable  may  be  proved  under  general  issue,          -  257 

exception  in  slander,      -------  257 

courts  may,  in  their  discretion,  require  notice,  -           -           -  257 

MONEY,         ---------  318 

money  contract  in  one  place,  such  everywhere,             -           -  319 

such  contracts  payable  in  legal  money,          -            -            .            -  320 
in  whatever  money  a  contract  payable,  when  sued  judgment 

given  in  the  money  of  the  forum,         -            -            -            -  321 

bank  bills  and  other  conventional  currency,             _           _           -  321 

payments  made  in  bank  bills,        -----  321 

effect  of  changes  in  the  value  of  money,     -            -           -           -  322 

the  legal  currency  of  the  United  States,              _           -             -  326,  333 

contracts  payable  in  dollars,    -----          335,  339 

See  Interest,          -------  531 

MORTGAGE  — 

discharged  by  tender,    -------  471 

MOTIVE  — 

how  bad  motive  affects  damages  in  actions  upon  contract,            -  156 

in  case  of  marriage  promise,         -----  156 

right  to  compensation  independent  of,           -           -           -           -  159 
bad  motive  may  increase  damages  in  tort,  but  its  absence  wiU 

not  affect  right  to  compensation,          _           _           -           -  159 


INDEX.  867 

MOTIVE  —  continued.  Pages. 

distinctions  made  for  bad  motive  in  cases  of  contract  as  well  as 

tort, 159 

in  cases  of  contracts  for  sale  of  land,      -  -  -  -  159 

and  for  services,  ..-_■--  160 

in  case  of  confusion  of  goods,      -----  163 

where  property  tortiously  taken  improved,  .  -  -  164 

distinction  made  in  matter  of  proof,       -  _  -  -  172 

See  Exemplary  Damages,      ------  716 

MUNICIPAL  CORPORATION  — 

right  of  recovery  over  where  made  liable  for  negligence  or  tort 

of  a  person  acting  under  contract  or  license,  -  -  137 

not  liable  for  exemplary  damages,     -----  758 

MUTUAL  CREDIT,       -  - 224 

only  the  net  balance  of  connected  accounts  recoverable,  -  -  225 

mutual  debts  do  not  compensate  each  other,      -  -  -  224 

courts  favor  liens,  when,  ------  225 

NATURAL  CONSEQUENCES  — 

right  to  recover  damages  confined  to,      -  -  -  -  18 

See  Consequential  Damages. 

NAVIGATION  — 

consequential  damages  for  obstructing,  by  gas-pipe,  -  -       97 

channel  to  lock,        -------  97 

NEGLIGENCE  — 

scope  of  consequential  damages  from,  -  -  22,  23,  32,  33 

there  is  liability  for  those  consequences  likely  to  foUow,   -  -       23 ' 

damages  from  negligent  collision  of  vehicles,    -  -  -       22,  24 

of  owner  of  diseased  sheep  in  allowing  them  to  trespass  and 

communicate  the  disease,     ------       24 

in  leaving  bars  of  pasture  down  near  railroad,  -  -  25 

non-repair  of  fences  by  which  animals  escape  and  do  damage,    -       25 
or  by  which  animals  enter  enclosure  and  get  hurt,       -  -  25 

non-repair  of  wharf,  whereby  a  team  drowned,     -  -  -       25 

negligently  laying  gas-pipe,  -----  25 

negligently  setting  fire,  ------       25 

leaving  horses  unattended  on  a  public  street,     -  -  -       26,  65 

or  other  dangerous  property,  -  -  -  -  -       26,  27,  29 

negligently  bottling  and  labeling  poisons  for  market,  -  -  28 

non-repair  of  highways,  -----  31-46 

when  non-repair  of  bridge  remote  cause,  -  -  -       48,  63 

of  water  company  for  not  keeping  pipes  charged  with  water  for 
extinguishment  of  fires,        -  -  -  -  -  -        41 

neglect  to  give  notice  to  repair  canal  lock,         -  -  .  50 

negligently  wetting  wool  in  original  package,         -  -  -       57 

negligent  delay  of  transportation  of  goods,        -  -  -  59 

delay  in  towing  raft,     -------60 

negligent  retaining  of  money  in  bank  by  trustee,         -  -  61 


868  utoex. 

NEGLIGENCE  —  continued.  '  Pages. 

negligent  driving  of  stage  coach,        -  -  -  -  -       69 

negligence  in  affording  opportunity  for  injury  by  wrongful  act 

of  third  person,    -------  70 

mitigation  in  action  against  notary  for  negligence  in  protesting 

commercial  oaper,      ------- 

NEW  TRIAL  — 

will  be  given  for  excessive  or  insufficient  damages,    -  -  810 

where  findings  as  to  damages  not  sustained  by  evidence,  new 

trial  may  be  granted,  ------  813 

objection  may  be  removed  by  remittitur,  -  .  -  813 

where  jury  fail  to  find  nominal  damages,     -  -  -  -  815 

NOMINAL  DAMAGES  — 

allowed  absolutely  for  infraction  of  legal  right,      -  -  2,  9-16 

where  actual  damages  assessed,  nominal  damages  not  added,  9 

if  a  right  is  violated,  at  least  nominal  damages  given,             -  9 

they  cannot  be  controverted,               -            -           -           -            -  10 

they  wiU  be  allowed,  though  the  violative  act  a  benefit,          -  10 
every  breach  of  contract  or  duty  gives  a  right  to  nominal  dam- 
ages,     ---------13 

every  tortious  interference  with  person  or  property  gives  a  right 

to  them,      --------  11 

the  maxim  de  minimis  non  curat  lex  has  no  application,  -            -  13 
will  be  given  for  violation  of  contract,  if    actual   injury  not 

shown,        ..------  110 

exemplary  damages  never  added  to  nominal,           -           -           -  748 

when  verdict  will  be  set  aside  for  failure  to  find,           -           -  815 

court  may  add  by  amendment  of  finding  for  plaintiff,        -           -  827 

NON-DELIVERY  OF  GOODS  — 

value  and  interest,  -------   173,  174 

NON-PAYMENT  OF  MONEY  — 

mterest, -  -  -  128,  596 

NOTARY  — 

mitigation  in  suit  against,  for  negligence,  -  -  -  154 

NOTICE  — 

adjoining  owner  required  to  give,  when  he  digs  so  as  to  endanger 

foundations,    -  -  -  -  --  -  -96 

advantages  of,  to  party  bound  to  ii  de  unify,      -  ***       -  -    184-147 

when  necessary  to  give  a  right  to  interest,    -  -  -  -      619 

NUISANCE  — 

successive  actions  must  be  brought  for,  as  a  continuing  injury,  203 

there  is  a  legal  obligation  to  discontinue,           -           -           -  198 

mitigation  in  action  for,            ------  245 

what  not  a  mitigation,        ------  843 

particularity  of  allegation  for  proof  of  special  damage,    -           -  765 

in  case  of  public  nuisance,  special  injury  miist  be  alleged,     -  766 


INDEX.  8G9 

Pages. 

ODimi  SPOLIATORIS, 172,  784,  785 

OFFICE  — 

loss  of,  as  result  of  assault  and  battery,  remote,  -  -  49 

OFFICER  — 

mitigation  in  favor  of,  for  arrest,    •   -  -  -  -  227,  231 

for  seizure  of  property,   a  subsequent  levy  or  return  of  the 
property,    --------  236 

that  plaintiff  bought  the  goods,  -----     238 

that  officer  seizing  for  tax  paid  it,  -  _  -  -  241 

liability  for  neglect  of  duty  to  creditor,         -  .  -  246-250 

for  escape,        ------__  249 

may  justify  arrest  on  suspicion,  -----     256 

liable  for  interest  on  money  detained.      -  -  -  .  628 

when  oflicer  liable  for  exemplary  damages,  -  .  -     758 

loss  from  failure  of,  to  perform  public  duty,  not  actionable,  -  55 

OPINIONS  — 

of  experts  admissible  on  questions  of  science  and  skiU,   -  -     785 

on  questions  of  value,        ------  795 

of   all  persons  on  matters  of  common  observation  and  experi- 
ence,     ---------     786 

not  of  the  amount  of  damages,     -  -  -      .      -  -  794 

OWNER  — 

general  and  special,  may  recover  according  to  interest,      -  209,  210 

PAIN  — 

compensation  for,  recoverable  when  caused  by  wrong,      -  -      106 

the  law  infers,  from  personal  injury,       -  -  -  _  766 

PAR  OF  EXCHANGE, 339 

nominal  and  real  par,  ----._  341 

PARTICULAR  WORKS  — 

elements  of  damage  for  employer's  breach  of  contract,     -         131,  132 

mitigation  in  action  against  contractor,  -           -           -           -  253 

damages  for  delaj^  in  completing,        -----  109 
liquidation  of  damages  on  contracts  for,    -        -           -           -    508,  512 

PARTIES  — 

to  sue  and  be  sued,        ----_._  203 

damages  to  joint  parties  injured,  entire,  -           -           -           .  203 

should  join  in  suit  as  plaintiffs,           -----  203 

in  actions  ex  contractu  they  must,           -           -           -           .  204 

damages  must  be  recovered  by  person  having  the  legal  interest,  -  204 

who  liave  legal  interest  in  contracts,        _           .           -           .  204 

contract  not  joint  when  it  apportions  the  interest  of  the  parties,  -  205 

implied  assumpsit  follows  consideration  as  to  party  paying,   -  205 

effect  of  discharge  of  one  jointly  Uable,        -           -           .           .  205 

misjoinder  of  plaintiffs,  when  fatal,        -           -           -           -  2O6 

joinder  of  defendants,  effect  of  mistake,      -           -           -           -  207 


870  INDEX. 

PARTIES  — continued.  Pages. 

when  contracts  are  joint  or  not,    -----  207 

how  joint  obligation  or  liabihty  extinguished  or  severed,  -  -     208 

who  may  join  in  action  for  injury  to  property,  -           -           -  209 

who  cannot  unite,          -.-_-.  210,  211 

extent  of  personal  participation  immaterial,      -            -           -  211,  213 
case  of  nine  writs  for  arrest,    ------     213 

separate  owners  of  cattle  joining  to  do  damage,            -           -  215 

PARTNERSHIP  AGREEMENT  — 

damages  on,        --------     119 

PARTITION  WALL  — 

damage  for  causing  the  fall  of,            -----  96 

injury  to  business  and  cost  of  reinstating  the  wall,      -           -  96 

action  for  contribution,  and  interest  on,       -            -           -           -  590 

PASSENGERS  — 

breach  of  contract  to  convey,        -----  78 

may  recover  for  inconvenience  and  aggravations,  for  expenses 

of  sickness,  for  failure  to  fulfil  contract  to  convey,      -      100-105, 157 
in  action  for  negligence,  may  recover  for  sickness  of,  caused  by 

failure  to  carry  to  destination,  -----  78 

PAYING  MONEY  INTO  COURT, 474 

when  amount  paid  in  not  sufficient  in  amount,              -           -  473 

when  payment  into  court  proved,      -----  474 

effect  of  paying  money  into  court,  -  -  .       474^  731,  782 

►    what  is  admitted  by,     -           -           -           -           -           -           -  781 

PAYMENT  — 

may  be  proved  in  mitigation,        -----   255,  260 

what  it  is,            -           -            -           -           -           -           -           -  345 

what  a  payment  includes,  ------  345 

creditor  may  assent  in  advance  to  a  mode  of  payment  which  wiU 

be  effectual  when  thus  made,           -----  346 

how  payments  may  b^made,        -----    345-351 

what  is  not  a  payment,             ------  351 

effect  of  payment,  -------  352 

payment  before  debt  due,        ------  354 

payment  by  legacy,            _--_--  354 

payment  by  gift  inter  vivos,    ------  355 

payment  by  retainer,           ------  357 

when  creditor  makes  debtor  executor,           -           .           -           -  357 

when  debtor  appointed  administrator,     -           -           -           -  357 

when  trustee  may  retain  his  debt,      -----  357 

payment  in  counterfeit  money,     -----  358 

or  bills  of  broken  bank,  -----  358,  361 

when  a  bank  fails  its  bills  lose  character  of  money,      -           -  364 

doctrine  in  Pennsylvania,        ------  366 

payment  by  note  or  bill,    ------  370 


INDEX.  871 

PAY]\IENT— continued.                                                                           Pages. 
presumption  when  note  taken  for  goods  sold  or  other  contempo- 
raneous debt,  --------  370 

effect  in  New  York  of  receiving  note  with  agreement  that  it  is 

payment,          ..------  371 

the  doctrine  elsewhere,       ------  372 

presumption  from  mere  receipt  of  debtors  note  or  property  on 
account  of  a  debt  in  Massachusetts,  Maine,  Indiana  and  Ver- 
mont,   ---------  373 

same  presumption  where  debtor  deUvers  tliird  person's  note,  -  373 
it  is  a  presumption  of  fact,  and  may  be  rebutted,  -           -           -  373 
it  is  founded  on  the  negotiable  quality  of  the  paper,    -           -  373 
the  rule  generally  is,  that  a  note,  bill  or  check  is  taken  as  condi- 
tional payment,          -------  374 

renewal  of  a  note  not  a  payment  of  it,    -           -           -           -  376 

unless  renewal  note  discounted,  and  avails  used  to  pay  original 

note, -           -            -           -  376 

there  must  be  agreement  to  take  note  or  other  paper  as  payment 

to  give  it  that  effect,        ..----  376 

receipt  of  negotiable  paper  as  conditional  payment  svispends 

right  of  action,           .-.----  377 

it  will  not  be  presumed  that  such  i^aper  is  not  paid,      -           -  377 

it  is  prima  facie  payment,       ------  380 

such  creditor  accepts  duty  of  diligence  as  to  paper  received  on 

account  of  debt,   -------  378 

he  must  take  proper  steps  to  hold  other  parties,       -           -  378 
consequences  of  neglect,     -----                378,  382 

amount  collected  or  lost  by  creditor's  neglect  treated  as  pay- 
ment,         .--.---        378,  382,  383 
actual  injury  from  laches  of  creditor  the  measure  of   allow- 
ance to  debtor,            .-.----  382 

he  must  show  extent  of  loss,         -----  382 

transfer  of  collateral  by  creditor  equal  to  its  collection,     -           -  383 

creditor  in  that  case  liable  for  its  face,     -           -           -           -  383 

he  must  settle  with  debtor  for  nominal  amount  when  he  has 

settled  with  the  collateral  debtor,         -           -           -           -  383 

who  may  make,              .------  384 

payment  by  tliird  person  good  if  ratified  by  debtor,     -           -  384 
effect  of  satisfaction  by  a  stranger,    -           -           -           -          384-386 

purchaser  subject  to  mortgage  may  make,         -           -           -  387 

stranger  cannot  be  subrogated.            -----  387 

if  one  compelled  by  his  own  interest  to  pay  another's  debt,  he  is 

entitled  to  subrogation,  ------  387 

to  whom  payment  may  be  made,        -----  387 

may  be  made  to  attorney  who  obtained  judgment,       -           -  387 
possession  of  mercantile  paper  evidence  of  authority  to  receive 

payment,          --------  387 

circumstances  may  impeach  this  authority,       .           -           -  388 

bad  faith  necessary  to  avoid  payment  to  one  having  such  paper,  388 


S72  IKDEX. 

PAYMENT  —  continued.  Pages. 

payment  to  one  not  having  such  paper  at  the  peril  of  party 

paying,       --------  388 

payment  to  original  holder  of  note  and  mortgage,             -           -  388 
may  not  be  made  to  assignor  of  demand  after  notice  of  assign- 
ment,         ...-----  388 

when  payment  by  garnishee  sustained,         _           _           -          388,  389 

when  debt  owing  to  two  or  more,  payment  may  be  made  to  either,  389 

good,  made  to  administrator  before  his  appointment,        -            -  389 
pleading  payment  necessary  for  full  defense,     -            -            -    389-396 
may  be  proved  under  general  issue  whether  made  before  or  after 

suit  brought,   --------  783 

under  general  allegation  of,  any  mode  of  payment  may  be  proved,  396 

possession  of  evidence  of  debt  by  maker,  evidence  of  payment,  397 

other  evidence  of  payment,     ------  397 

receipts  for  rent  and  taxes  imply  payment  of  earlier  rent  and 

taxes,    ---------  397 

presumption  of  payment  when  debtor  becomes  trustee  to  re- 
ceive,         --------  397 

payment  made  on  Sunday,  good,        -----  397 

indorsement    of  credit  for  part  by  payee  will  rebut  presump- 
tion of  payment,              ------  393 

creditor  not  obliged  to  receive  part  of  his  debt,       -            -           -  451 

where  payment  to  be  made,            -            -           -           _           _  638 

PECUNIARY  CIRCUMSTANCES  OF  DEFENDANT  — 

when  provable  to  affect  damages,       -  -  -  -  744, 745 

PENALTY  — 

effect  of,  in  contract,  --....    478-490 

as  distinguished  from  stipulated  damages,    -  -  -         478,  508 

the  facts  outside  of  contract  may  be  investigated  to  ascertain 

if  it  contains  a  penalty,  ------  500 

when  larger  sum  promised  to  secure  payment  of  a  smaller,  it  is 

a  penalty,         -----_.-     497 
when  fixed  sum  in  a  contract  a  penalty,  .  _  _  508 

PERSONAL  INJURY  — 

elements  of  damage  for,          ------  153 

the  law  presumes  pain  from,         -           -           -           -           -  766 

PLACE  OF  CONTRACT— 

law  of,      -           - 631 

law  of  place  where  contract  to  be  performed  governs,            -  633 

bond  of  officers  of  United  States,      -----  637 

between  parties  residing  and  doing  business  in  different  states,  637 

effect  of  cliange  of  the  law,          -           -            »           _           _  666 

PLAINTIFFS  DUTY  — 

to  exert  himself  to  lessen  and  prevent  damages,     -           -         148,  156 

not  arbitrarily  imposed, —  reasonable  exertion  required,           -  150 

his  duty  on  this  principle  as  employer  of  builder,  -           -         150.  154 


INDEX.  873 

PLAINTIFF'S  DUTY  — continued.  Pages. 

as  a  purchaser,          ---..__  151 

wlieu  injured  by  trespass,       -----  150-1 54 

not  required  to  commit  a  tort,       -----  153 

nor  to  anticipate  one,     ------_  153 

this  is  a  duty  of  fair  dealing,        -           -           -           .           .  153 
notary  not  liable  for  amount  of  commercial  paper  to  a  plaintiff 
who  failed,  against  an  indorser,  by  refusal  to  urge  his  liability 

on  another  ground,     -----..  154 

plaintiff's  claun  will  be  reduced  to  the  loss  he  would  have  suffered 

if  tliis  duty  performed,  ------  143 

this  duty  exists  in  cases  of  contract  and  tort,          .           -           _  153 
how  a  claim  against  a  city  for  injury  by  a  mob  affected  by  neg- 
lect of  this  duty,  -------  154 

the  right  of   a  tax-payer  to  resist  tax  after  omitting  steps  to 

correct,             ---.--_.  155 

loss  of  interest  by  neglect  to  enforce  decree,      -           -           _  155 

refusal  of  offers  which  would  have  mitigated  damage,      -           -  155 

PLAINTIFF'S  EIGHT  — 

to  finish  conti-actors  contract  at  his  expense,          -           -           -  155 

a  shipper  to  employ  other  means  of  transportation,     -           -  155 

a  passenger  to  get  another  conveyance,        -           .           _           .  155 

must  be  a  reasonable  thing  to  do  under  the  circumstances,     -  156 
the  plaintiff  cannot  incur  an  expense  on  this  principle  which  he 

would  not  on  his  own  account,        •            -           -           -           -  156 

PLEADING  — 

of  matters  in  mitigation,    ------  257 

notice  in,  of  recoupment,  necessary,  -----  301 

payment,       -----...  339 

what  must  be  alleged  to  give  benefit  of  tender,        -           -           .  45^ 

pleading  for  recovery  of  interest,             -           -           -           _  534 

foreign  interest  laws  to  be  alleged,     -----  664 

how  interest  naust  be  claimed  in  pleading,           -            .            .  705 
the  plaintiff  must  state  a  case  which  entitles  him  to  damages  — 

to  at  least  nominal  damages,      -----  759 
the  claim  of  damages  wiU  not  entitle  him  to  more  than  the  case 

stated  warrants,          --._._.  759 

too  large  a  claim  of  damages  will  not  vitiate  verdict,             -  759 

en-oneous  claim  of  damages  not  ground  of  demurrer,       -           -  763 

ad  dammim  is  the  logical  and  legal  conclusion  of  case  stated,  759 

not  of  substance,  and  if  left  blank,  judgment  will  be  sustained,  760 
ad  damnum  at  the  conclusion  of  declaration,  wliere  there  are 

several  counts,  sufficient,            -           -           -            .           .  750 

demand  of  damages  in  complaint  under  code,         -           -           .  7(}0 

principally  important  in  default  judgment,        -           -           -  76O 
the  court  has  authority  to  grant  relief  according  to  the  case 

stated,  ---------  700 


874  INDEX. 

PLEADING— continued.  Pages. 

effect  of  not  answering  allegations  of  damage,  -  -  761 

the  particulars  of  the  wrong  in  trespass  or  case  not  admitted,      -      761 
ad  damnum  limits  plaintiff's  recovery,     -  -  -  -  761 

it  may  be  amended,  or  excess  of  verdict  remitted,  -  -  761,  763 

under  general  allegation  of  damages  plaintiff  may  recover  dam- 
ages that  necessarily  result  from  act  complained  of,  -  763 
interest  as  damages  may  be  recovered  under  it,  -  -  -  763 
special  damages  must  be  alleged,  _  _  _  _  763,  764 
where  damages  are  gist  of  the  action  they  must  be  alleged,  -  766 
not  necessary  to  itemize  damages  in  pleading,  -  -  -  770 
statutory  damages  must  be  specially  claimed  in  the  declaration,      770 

PLEDGE  — 

will  be  released  by  tender,       ------     471 

POISON  — 

consequential  damages  for  injuries  resulting  from  mislabeling 
and  sending  into  market,  -  -  -  -  -  28 

POSSESSION  — 

when  property  conde«ined  for  public  use  deemed  taken  so  as  to 
give  owner  absolute  right  to  assessed  compensation,      -  -     604 

PREVENTING  LOSS  — 

plaintiff's  duty  to  exert  himself  for,        -  -  -  -  148 

PRINCIPAL  — 

liability  to  surety  or  agent  for  costs,  -  -  -  139,  140 

PRIVATE  INJURY  — 

special,  must  be  shown  to  give  right  of  action  for  public  wrong,  6 

PRIZE  — 

damages  for  preventing  competition  for,      -  -  -  -      123 

PROFITS  — 

may  be  recovei'ed  for,  when  provable  with  certainty,              -  106,  126 
of  vendor  against  vendee,        ------      107 

vendee  against  vendor,        ------  107,  108 

against  a  ship-builder  for  delay  in  completing,        -           -  -      108 

for  failing  to  complete  any  particular  works,     -           -           -  109,  110 

for  preventing  the  performance  of  special  contract,           -  113-118 

conjectural  profits  of  whaling  voyage  not  recoverable,            -  110,  111 
of  special  contracts,      -------      113 

from  commercial  ventures,            -            -           -           -           -  118 

for  refusal  to  perform  partnership  agi-eement,         -           -  119-121 

gains  prevented,  proper  subject  of  damage,       -           -           -  130 

for  total  breach  of  contract,  its  value,           -           -           -  -     130 

proportionately  for  partial  breach,            -           -           -           -  130 

PROMISE  OF  MARRIAGE  — 

action  for  breach  of,      -            -           ■■           -           -           -  •     156 
See  Marriage  Promise. 


INDEX.  875 

Pages. 

PROOF, >--.783 

See  Evidence. 

PROSPECTIVE  DAMAGES  — 

when  recoverable,  -  -  -  -  .  175,  190,  193 

PROVOCATION  — 

effect  of,  as  a  mitigation  of  damages,    -  -  -        228,  229,  231 

PROXIMATE  CAUSE  — 

damages  limited  to,       -  -  .  -  -  18-73 

PUNITIVE  DAMAGES, 716 

See  ExEMPLAEY  Damages. 

QUANTUM  MERUIT  — 

claim,  liow  affected  where  contract  intentionally  violated,  -     IGO 

to  interest,     --------  586 

between  vendor  and  purchaser,  -----      593 

tender  may  be  made  on,     ------  443 

RATE  OF  EXCHANGE  — 

when  creditor  entitled  to  it  in  addition  to  debt,       -  -  -     342 

REAL  ESTATE  — 

damages  on  contracts  relating  to,  exceptional,  -  -  -  130 

stipulation  of  damages  for  breach  of  contract  to  buy  or  sell,       -      506 

RECOUPMENT  AND  COUNTERCLAIM  — 

definition  and  history  of  recoupment,      -           -           -           -  261 

formerly  sums  certain,  and  even  demands  on  quantum  meruit, 

not  subject  to  defense  for  reduction,  -  -  _  261-264 

founded  on  the  natural  equity  that  connected  demands  should 

compensate  each  other,   ------  265 

it  is  also  founded  on  the  policy  of  saving  litigation,           -           -  265 

not  confined  to  cases  of  fraud,      -----  264 

it  is  a  mutual  set-off  of  demands  growing  out  of  the  same  tran- 
saction,            ._-_..-.  265 
it  is  not  based  on  failure  of  consideration,          -           -        265,  269,  270 
based  on  the  opposite  principle,           -----  270 

some  American  cases  proceed  on  that  theory,    -           -           -  265 

and  also  some  English  cases,    ------  266 

finally  the  English  counterclaim  settled  in  Mondel  v.  Steel,  a 

mitigation  of  damages,   ------  266 

constituent  features  of  recoupment,  -----  272 

defendant's  claim  for  recoupment  must  be  a  valid  cause  of 

action,         --------  273 

differs  fronr  mitigation  of  damages,  -----  273 

Judge  Bigelow's  resume  of  recoupment,              -           -           -  270 
defendant's  claim  must  be  against  the  real  plaintiff,        -             274,  275 
a  demand  against  a  sheriff  for  his  tort  cannot  be  subject  of  re- 
coupment against  his  demand  in  behalf  of  execution  cred- 
itor,               274 


S76  ESTDEX. 

RECOUPMENT  AND  COUNTERCLAIM  —  continued.  Pages. 

damages  for  fraud  of  executors  in  sale  cannot  be  used  as  defense 

to  purchase  money  due  them  as  executors,  ...     274 

cross  claim  belonging  to  defendant  and  another,  admissible,  -  275 

surety  may  set  up  demand  due  principal,      -  -  -  -      275 

this  is  refused  in  New  York,  -  .  _  _  _  275 

where  plaintiff  is  an  assignee,  .  _  -  _  -     375 

where  note  sued  on  taken  by  husband  payable  to  his  wife  with- 
out consideration  moving  from  her,     ....  275 

whether  defaultant's  cause  of    action  must  be  mature  when 

action  brought,  ......  275,  276 

defendant's  demand  must   arise  out  of    same  transaction    as 

plaintiff's  cause  of  action,  .  _  .  _  .  277 

whatever  the  nature  of  the  contract,  damages  may  be  set  off  by 

recoupment,     .-..--.  279,  380 

master  may  recoup)  for  servant's  negligence  in  his  action  for 
wages,        --_....-  280 

for  any  tort  or  misconduct  in  connection  with  his  employment,        280 
mutual  I'ight  of  recoupment  between  pledgor  and  pledgee,    -    280,  281 
between  landlord  and  tenant,  _  .  .  _  _     285 

between  carrier  and  shipper,  -----  281 

between  vendor  and  purchaser,  -  -  277,  281,  283,  289,  290 

against  pliysician's  suit  for  services  that  he  carried  small  pox,  281 

where  contract  on  part  of  plaintiff  has  been  executed,      -  -     281 

Judge  Bronson's  statement  of  doctrine  of  recoupment,  -  283 

the  transaction  may  be  same  though  notes  be  given  on  one  side, 

or  agreement  be  only  in  part  \vTitten,        ...  284,  291 

may  be  connected  though  agreement  relate  to  distinct  things, 

283,  285,  291 
there  may  be  recoupment  against  claim  arising  on  contract 

though  the  cross  claim  be  a  tort,     -  .  -  -  -      287 

explanation  of  counterclaim,       ....  -    287,  288 

the  damages  may  be  unliquidated  on  either  or  both  sides,  -      292 

must  be  pleaded  and  proved  by  defendant,        -  293,  294,  297,  301 

recoupment  available  only  as  a  defense;  defendant  cannot  re- 
cover balance,  ..-...-  293 
if  connected,  tort  and  contract  may  be  recouped,  -  -  292 
defendant  has  an  election  to  recoup  or  sue,  _  -  .  294 
but  it  must  be  practicable  to  do  justice,  .  .  -  295,  296 
judgment  on  claim  offered  for  recoupment,  a  bar,  -           -           -     298 

RELEASE  — 

definition,             ----____  433 

diffei's  from  accord  and  satisfaction,        -           _           _           _  434 

when  a  seal  not  necessary,       ._----  434 
an  agi-eement  without  seal  can  operate  to  discharge  a  demand,  if 

upon  sufficient  consideration,     ....           -  434 

a  release  not  under  seal  and  without  consideration,  void,              -  434 

a  mere  receipt  may  have  tlae  effect  to  discharge  a  demand,    -  434 


INDEX.  877 

RELEASE  —  continued.  Pages. 

scope  of  release,            .._.---  434 

construction  of  releases,     ------  435,  436 

release  executed  by  one  of  several  entitled  to  claim,         -           -  435 

effect  when  executed  by  or  to  one  of  several  claiming  or  liable,  435 

release  of  one  of  several  discharges  all,  ...  -  436 
a  simple  contract  cannot  operate  as  a  release,  and  be  pleaded  as 

such, 438 

may  so  operate  by  way  of  accord  and  satisfaction,             -           -  438 

what  acts  will  operate  as  a  release,          .           _           _           -  440 

covenant  not  to  sue,      -------  44O 

release  of  the  principal  debtor  will  release  the  sureties,  -  442 
a  release  by  express  provision  may  release  one  and  except  others 

from  its  operation,     -------  442 

a  release  cannot  take  effect  in  futuro,      -           -           -           -  442 

REMITTITUR  — 

to  cure  error  or  remove  objection  of  excess  of  dars^ages,  -           -      812 

the  court  may  indicate  amount  to  be  remitted,              -  -           813 

when  and  how  excess  should  be  remitted,     -           -  -          814,  185 

REMOTE  CAUSE  — 

as  distinguished  from  proximate  cause,        -  -  -  -  20-73 

RENT  — 

interest  on,  recoverable,      ------  606 

conditional  agreement  for  reduced  sum  for  prompt  payment,      -     498 

REPAIR  — 

consequential  damages  against  town  for  non-repair  of  highways,  31 
against  parses  bound  to  repair  fences,  -  -  -  -       25 

mitigation  of   trespass  on  ground  of   plaintiff's  fences  out  of 
rei^air  or  defective,  ------  254 

REPLEVIN  — 

aggravations  connected  with  wrongful  taking  of  property  prov- 
able in,  without  special  allegation,      -  -  -  .     767 

RESALE  — 

damages  on  contracts  of  sale,  when  measured  by  price  in  con- 
tracts for  resale, 81,  84,  92,  131 

RES  GEST^  — 

defendant  entitled  to  prove,  in  mitigation,         -  -       244,  260,  776 

RESTITUTION  AFTER  REVERSAL, 830 

action  may  be  brought  for,  -----  830 

may  be  obtained  by  motion,     ------     830 

what  may  be  restored,        ------    830-833 

when  discretionary,      -------     632 

RETURN  OF  PROPERTY  TORTIOUSLY  TAKEN  — 

goes  in  mitigation,  -----•■  239 


878  INDEX. 

RIPARIAN  OWNER—  Pages. 

rights  of,        -------           -  12 

may  recover  for  polluting  stream  running  through  his  farm,  -       96 

may  recover  for  loss  of  opportunity  to  rent  mill,          -            -  96 

inconveniences  in  working  of  farm,  caused  by  the  pollution,  -       96 

what  provable  under  general  allegation,              -           _           -  766 

ilOADS  AND  BRIDGES  — 

consequential  damages  resulting  from  non-repair,  -  -       31 

SALES  — 

damages  for  breach  of  contract  for,             -           -  82,  91,  173,  174 

when  measured  by  price  in  contract  for  resale,  -       81,  84,  92,  131 

where  contract  made  for  special  use  of  property,  -  -  75,  80,  83,  88 

SECURITY  — 

released  by  tender,  -------  471 

SEDUCTION  — 

master's  action  for,  not  mitigated  by  offer  to  marry,          -  -      344 

in  father's  action  for,  mitigation  that  no  marriage  to  mother,  -  25 

carelessness  in  affording  opportunities,          ...  -     254 

actual  connivance  a  bar,     ------  254 

SEED  — 

damages  on  breach  of  warranty  of  genuineness,     -  -  -     111 

SERVANTS  — 

damages  for  enticing  away,  -  .  -  -  54,  49,  68 

no  recovery  therefor  in  consequence  of  losses  in  dealings  with 

others  hired  in  their  place,   -  -  -  -  -  -       54 

beating  an  actor  so  lie  cannot  perform  gives  latter's  employer  no 

cause  of  action,     -------  49 

enticing  away  emploj'es  maliciously,  -  -  -  -       49 

must  exert  themselves  to  find  employment  after  being  discharged, 

to  lessen  damages,  -.._■-  150 

damages  for  enticing  away,     ------      196 

recoupment  in  action  for  wages,  -----    279,  280 

liquidation  of  damages  in  contracts  with,     -  -  -  -      510 

SET-OFF  OF  JUDGMENTS, 311 

power  of  courts  to  order  it,     -  -  -  -  -  -      311 

when  it  will  or  will  not  be  granted,  -  -  -  -  311 

such  set-off  discretionary,        ------      312 

will  be  allowed  only  between  real  parties  in  interest,   -  -    313,  314 

cannot  be  granted  until  judgment  rendered,  -  -  -     315 

assignee  must  make  absolute  purchase,   -  -  -  -  315 

set-off  does  not  depend  on  the  nature  of  the  cause  for  which 

judgment  given,         -------     316 

attorney's  lien,  -------  316 

SEVERAL  RIGHT  OR  LIABILITY,       -  -  -  -  203-219 

See  Entirety  of  Actions. 


DfDEX.  879 

SHEEP-  Pages. 

liability  of  owner  for  allowing,  to  trespass  and  communicate 

disease,       -----_-.  24 

SHERIFF— 

damages  for  neglect  of  duty,  ------  246 

SLANDER  AND  LIBEL  — 

law  impUes  some  damage  from,     -           -           -           -           _  13 
provocation  in  mitigation,        --.-_.  231 
truth  of  words  not  provable  in  mitigation,        -            .            .  232 
necessary  to  give  notice  of  excuse  for  uttering,  to  prove  it  in  miti- 
gation,             -.-.._..  257 

SPECIAL  DAMAGE  — 

must  be  sjiecially  alleged,  ------  763 

in  case  of  public  nuisance,  must  be  alleged,             _           -           -  766 

necessary  to  private  action  for  public  wrong,    -           -           -  6 

SPECIAL  CONTRACT  — 

damages  on,        -------_  113 

SPECIAL  OWNERS  — 

damages  recoverable  by,           --__._  2IO 

entitled  to  recover  f  uU  value  against  stranger,  -           -           -  240 

SPLITTING  OF  CAUSES   OF  ACTION,  -  -  -  175-186 

duty  of  banks  to  pay  cliecks,  an  exception  to  rule  against,     -  497 
See  Entirety  of  Damages, 

STIPULATED  DAMAGES, 475 

contracts  to  stipulate  damages,  valid,      -           -           -           _  475 

damages  can  be  liquidated  only  on  a  valid  contract,          -           -  475 

modes  of  liquidating  damages,      -----  476 

alternative  contracts,    -------  477 

stipulated  damages,  as  distinguished  from  penalty,  -  -  478 
in  what  sense  the  intention  of  the  parties  governs,  -  479^91 
such  agreements  should  liquidate  damages  for  compensation. 

479,  491,  513 

a  bond  is  prima  facie  a  penal  obligation,             -           -           .  439 

the  use  of  the  word  penalty,  or  stipulated  damages,  in  contract,  489 

the  tendency  and  preference  of  the  law  to  treat  sum  as  penalty,  490 
not  so  when  damages  uncertain  and  otherwise  difficult  of  proof, 

490,  491 

contracts  for  the  payment  of  money,            -           -           -  493^  555,  777 

a  large  sum  to  secure  payment  of  a  smaller,      -           -           -  497 

where  the  larger  sum  is  the  actual  debt,        .           -           .           -  499 

the  real  transaction  may  be  investigated  to  ascertain  a  penalty,  501 

where  the  damages  -would  be  certain  or  uncertain,      -            -    491,  503 

stipulation  to  liquidate  uncertain  damages  favorably  considerea>  504 

what  damages  deemed  uncertain  for  this  purpose,  -           -           -  505 

contracts  for  good  will  of  business,  and  for  not  engaging  in  it,  5o7 

contracts  to  liquidate  damages  for  default  on  particular  works,  508 


SSO  INDEX. 

STIPULATED  DAM  AGES  —  continued.  Pages. 

stijiulations  for  even  uncertain  damages  not  sustained  when  the 

amount  is  extravagant,  ------    509,  510 

the  cxuestiou  wliether  penalty  or  stipulated  damages  will  gener- 
ally be  answered  according  to  the  justice  of  the  case,   -  513-514 

when  doubtful,  courts  incline  to  penalty,           -            -            -  512 

stipulations  may  fix  part  only  of  damages,  -           -           -           -  517 

general  statement  of  doctrine  by  Agnew,  J.,      -            -            -  520 

'        stipulations  fixing  same  sum  for  total  or  partial  breach,    -            -  531 

partial  breacli  of  agreements  not  to  engage  in  a  business,       -  535 

effect  of  part  performance  accepted  when  damages  stipulated 

for  total  breach,          -------  528 

liquidated  damages,  when  in  lieu  of  performance,       -           -  539 

not  so  when  given  for  default  on  delay  or  some  detail  of  contract,  530 

STREAM  — 

nominal  damages  at  least  to  riparian  owner  for  fouling,   -           -  11 

what  actual  damage  t  recoverable,           -           -           -           .  Qg 

SUB-CONTRACT  — 

damages  on  principal  contract  may  include,            -           -           -  130 

when  excluded  from  consideration,         -           -           _           -  116 

SUBROGATION  — 

stranger  paying  debt  not  entitled  to,              _           .           -            -  387 

SUIT  — 

for  continuing  cause,  damages  limited  to  commencement  of,     198,  303 
damages  for  single  tortious  act,  occurring  after,  recoverable, 

175,  190,  193,  197 

jf     for  wrongfully  causing  one  to  be  sued,         .           -           .           -  106 

SUPPORT  — 

contracts  for,  entire  or  severable,             -           _           -           .  203 

SURETY— 

sums  necessarily  paid  by,  recoverable,           -           -           .           -  134 
when  sued  on  his  agreement,  what  costs  he  may  incur  on  ac- 
count of  principal,           -            -            -            -            -           -  135 

not  bound  to  pay  principal's  debt  to  lessen  damages,          -           -  153 

discharged  by  tender,          ----__  472 

entitled  to  interest  on  money  paid,    -----  588 

TAXES  — 

damages  for  failure  to  fulfil  contract  to  pay,      -           -           -  129 

TELEGRAPH  — 

charges,  when  item  of  damages,        -----  129 

nominal  damages  at  least  for  failure  to  send  or  deliver  message,  10 

TENDER, 448 

on  wliat  demands  tender  may  be  made,  -           -           -           -  443 

when  it  may  be  made,  -------  443 

strictly,  can  only  be  made  where  th^e  has  been  no  default,  -  444 


INDEX.  881 

TENDER  — continued.  Pages. 

by  the  old  cases,  should  be  made  early  enough  in  the  day  to 

count  the  money  before  sunset,       -  -  -  .  _  445 

must  be  made  in  legal  money,       -  -  -  .  .  447 

but  tender  in  other  money  must  be  objected  to  on  that  ground, 

467,  447,  454 
who  may  make  tender,       ----._    443,  453 

strict  authority  not  required,  ------  449 

to  whom  tender  must  be  made,     -----  449 

must  be  sufficient  in  amount,  ------  451 

creditor  not  obliged  to  receive  part  of  debt,       -  -  _  451 

tender  on  bond  should  be  the  amount  due  by  condition,  -  -  452 

tender  not  invalidated  by  being  more  than  the  debt,    -  -  452 

how  tender  must  be  made  —  money  to  be  present  and  produced,  455 
production  of  money  may  be  dispensed  with,    -           -           -    456,  467 

tender  must  be  unconditional,  -  -  _  .  .  459 

cannot  be  clogged  with  any  condition  to  ■which   creditor  can 

reasonably  object,  -...._    459^  451 

an  offer  of  a  svim  in  full  of  a  demand  is  not  good,  -  -  459 

asking  for  simple  receipt  will  not  vitiate  a  tender,        -  -  460 

tender  to  pay  negotiable  paper  may  be  accompanied  by  demand 

that  it  be  surrendered,  ------  452 

when  mutual  acts  to  be  done,        -  -  -  .  _  4^4 

effect  of  tender  accepted,         ------  4(54 

acceptance  of  tender  in  full  operates  to  satisfy  demand,         -    464,  465  , 

appeal  is  not  waived  by  acceptance  of  payment,     -  -  -  465  5' 

tender  must  be  kept  good,  .  .  .  .  .  454  ^ 

not  necessary  to  keep  identical  money,  -  -  _  _  465 

must  always  be  ready  to  pay  the  money  when  requested,     -  465 

refusal  of  money  tendered  on  demand  vitiates  the  tender,  -  466 

deposit  with  a  third  person,  and  notice,  unavailing,     -  -  466 

though  tender  made  by  agent  or  attorney,  demand  should  be 

made  of  the  debtor,    -------  466 

demand  must  be  made  of  the  precise  sum  tendered,      -  -  466 

demand  must  be  made  by  some  one  authorized  to  receive  it,        -  466 

when  tender  made  for  two,  demand  of  one  sufficient,  -  466 

if  tender  made  in  conventional  fund  with  which  debtor  has  a 

right  to  pay,  creditor  must  bear  loss  of  depreciation,     -  -  466 

waiver  of  strict  tender,  effect,      -----  457 

will  stop  interest,  -----._  457 

tender  must  be  pleaded  and  money  paid  into  court,      -  -  468 

effect  of  plea  of  tender,  ---...  468 

conclusive  admission  that  so  much  is  due,  -  _  .  468 

what  must  be  alleged,  -------  468 

how  plea  of,  should  conclude,        .  -  -  _  .  473 

plaintiff  entitled  to  take  the  money  paid  into  court,  -  -  469 

not  so,  the  money  paid  into  court  in  equity  on  bill  to  redeem, 

wliere  defendant  contests  and  succeeds,  -  -  -  4G9 

Vol.  11—56 


882  INDEX. 

TENDER  —  continued.  Pages. 

effect  of  regular  tender  when  money  paid  into  court,  -           -     470 

effect  of  tender  on  collateral  securities,  -            -           -  -           471 

when  Insufficient  sum  paid  into  court,          -           -  _           _     473 

when  sufficient  sum  paid  into  court,        .           _           _  _           473 

TITLE  — 

defendant  in  trespass  may  show  title  in  himself  in  mitigation,        344 

TORT  — 

why  damages  for,  may  be  given  more  liberally,  -           -           161 

joint  and  several  liability  for,              .           .  .           .            _     2II 

extent  of  individual  participation  immaterial,  -  -           -           311 

when  interest  allowed  as  damages  for,         -  -           .           _     639 

TOTAL  BREACH  — 

stipulation  of  damages  on,  -  «  -  _  .  505 

elements  of  damage  for,  ------      130 

of  contracts  for  support,  what  is,  -  -  -  -  203 

other  contracts,  ------  186,  195 

TOWNS  — 

liability  of,  for  non-repair  of  highways,  -  -  .  31 

TRADE  — 

stipulation  of  damages  for  violating  agreement  not  to  carry  on,       505 
TRANSACTION  — 

scope  of  same  transaction  in  the  law  of  recoupment  and  coun- 
terclaim,   --------  377 

TRANSPORTATION  — 

damages  for  delay  in,     -  -  -  -  -  -       85,  86,  89 

consequential  damages  for  delay  in,         -  -  -  -       59,  60 

TREASURY  NOTES, 338-338 

TRESPASS  — 

law  infers  some  damage  from,      -  -  -  -  -  13 

value  and  interest,  measure  of  damages  for,  -  -  173,  174 

special  owner  may  recover  according  to  his  interest,     -  -  310 

defendant  may  show  title  in  himself  in  mitigation,  -  -     344 

mitigation  that  property  destroyed  to  stay  progress  of  fire,     -  336 

that  defendant  as  landlord  entered  to  make  repairs,  -  -     237 

license  may  be  sliown  in  mitigation,        -  -  -  -  337 

interest,  recoverable  when,      -----  174,  639 

matter  of  aggravation  connected  with  trespass  to  real  property 

may  be  proved  without  being  specially  alleged,         -  -  767 

when  trespass  to  real  property  is  the  gist  of  the  action,  what- 
ever is  done  after  illegal  entry,  matter  of  aggravation,  -  -     769 

TRIAL  — 

when  damages  may  be  computed  down  to,        -  187,  190,  196,  197 

interest  should  be  computed  to  verdict,        -  -  -  -     187 


INDEX. 


883 


240 
240 


TROVER  —  Pages. 
See  Conversion 

measure  of  damages  in,      -----  '    '^'^^^  '^'^^ 

special  owners  to  recover  according  to  interest,  -           -           -      210 

mitigation  of  damages  in,             ...  -           -    238,  240 

damages  in,  assessed  on  equitable  principles,  -           -            -      240 

interest  allowed  in,  on  value  of  property,          .  -           -    174,  629 

TRUSTEE  — 

depositing  funds  in  a  bank  which  fails,        -  -  -  -       61 

damages  against,  for  property  lost,  value  and  interest,  -    173,  174 

mitigation,  where  guardian  authorizes  waste, 

executor  de  son  tort,  what  mitigations  to,  -  -  - 

tender  should  be  made  to  trustee,       -  -  -  -  -      451 

entitled  to  interest  on  money  paid,  .  -  -  -  591 

when  interest  allowed  against,  .  -  -  -  -      62v 

TRUTH  — 

of  words  uttered,  in  actions  for  slander,  not  provable  in  mitiga- 
tion,   232,233 

UNLIQUIDATED  DEMAND, 610 

interest  not  allowed  on,       -  -  -  "  "  "  ^^^ 

what  is,  within  the  sense  of  the  law  of  interest,     -  -  610,  611 

USABLE  PROPERTY  — 

damages  for  taking  or  depriving  of  use,  -  -  -       98,  99 

1 00 
for  injuring,         _------" 

where  holder  of  note  for  price  takes,       -  -  -  "  ^83 

USURY  — 

damages  for  non-payment  of  money  cannot  be  so  fixed  by  stip- 
ulation as  to  evade  the  statutes  against  usury,     -  -  -     556 

effect  of  usury  found, ^^^ 

plea  of,  not  favored,     -------     561 

it  is  deemed  equitable  that  creditor  should  receive  the  debt  and 

,       ,  .    ,         ,  -  -  -  -  562 

legal  interest,        -  - 

debtor  required  to  make  such  payment  when  required  to  do 

.,  _  -  -  -  -      563 

^^'''*^''  '  '      .'  563 

who  may  take  advantage  of  usury,         '  '  "  '  ro 

whencontractsnotdeclared  void  for  usury,  -  -  -     563 

law  of  what  place  governs, 

validation  of  contracts  void  for  usury,  -  -  -  -      673 

VALUE-  j^g 

measure  of  damages,  when,     -  -  -  "  '     n  r,'     noa 

diminished  and  mitigated  when  destroyed  to  stay  progress  of  fire,    23b 

proof  of,  --"""'" 

VERDICT  — 

courts  have  power  over,  and  may  set  it  aside,   -  -  -       2,  «1U 

interest  on,  before  judgment,  -  -  -  - 


S81  INDEX. 

VERDICT  ••  continued.  Pages. 

deliherationa  of  jury,          -__-_-  80B 

agreeing  to  abide  an  arithnaetical  average,              _           -            .  goii 

wlien  arrived  at  by  a  game  or  process  of  chance,          -           -  804 

when  affidavits  of  jurors  may  be  read  to  affect  verdict,     -            -  804 

rendering  and  amending  verdicts,            ...            -  805 

must  be  affirmed  in  open  court,  .  .  .  _  .  806 
after  being  received  by  court,  affirmed,  and  jui-y  discharged  and 

separated,  their  power  exhausted,        .            ,            -            .  800 

sealed  verdicts,  --------  807 

court  cannot  amend  verdict  in  matter  of  substance,    -            -  809 

may  in  matters  of  form,          .--.-.  809 

when  court  may  require  jury  to  reconsider,       -            -            -  809 

excessive  and  insufficient  verdicts,     -----  810 

court  may  set  aside  when  excessive  or  insufficient,  -  -  810,  811 
court  should  not  interfere  with  province  of  jury  to  decide  facts 

and  determine  the  amount  of  damages,     -            -            -            -  810 

when  objection  of  excess  may  be  removed  by  remittitur,       -    812,  813 

when  and  how  remission  of  excess  should  be  entered,  -  -  814 
when  new  trial  will  be  granted  for  failure  to  find  nominal  dam- 


ages. 


815 


must  be  certain  in  itself  or  with  the  aid  of  facts  appearing  in  the 

record,  ....---  816-818 

the  pui'pose  of  a  verdict,    --.---  816 

surplusage  in  verdict  may  be  rejected,  _  .  -  .  818 
general  verdict  when  there  are  several  counts,  some  of  which 

are  bad,      ----.---  818 

where  there  is  but  one  cause  of  action  in  several  counts,  -  820,  831 
where  there  are  several  breaches  of  contract  assigned  and  not 

all  good. 820 

where  plaintiff  is  not  entitled  to  the  whole  demand  made  in  a 

count,  ---------  820 

where  there  are  several  parties,     -----  823 

the  action  must  be  maintained  as  to  all  the  plaintiffs,        -            -  822 

and  as  to  all  the  defendants  in  actions  upon  contract,               -  822 
as  to  parties  in  actions  for  torts,         -            -            -            -          823,  824 

when  plaintiff  may  enter  judgment  de  melioribus  damnis,   -  825 

joint  damages  must  be  found,            _____  826 

double  or  treble  damages,             _           _           -           _           _  836 

VINDICTIVE  DAMAGES, 716 

See  Exemplary  Damages. 

WARRANTY  — 

party  having,  may  incur  costs  on  faith  of,   -  -           -          140,  141 

not  after  he  learns  that  the  warranty  is  false,  -           -           -    141-144 

recoupment  for  breach  of,       -           -           -  -           -          278-383 


ixDKx.  885 

WARRANTY  AGAINST  INCUMBRANCES.  Pagea. 

no  more  than  nominal  damages  can  be  recovered  on  a  general 

assignment  of  a  breach,              -            _           .            .            .  705 
the  plaintiff  must  allege  the  discliarge  of  the  incumbrance  to 

recover  for  it,  -            -           -           -           -           -           -           -  765 

WEALTH  OF  DEFENDANT  — 

when  provable  in  mitigation  or  aggravation  of  exemplary  dam- 
ages,           ----...-  743 

WILFUL  WRONG  — 

damages  for,  given  with  liberal  hand,  -  -  -  71.  IGl 

difference  made  in  case  of  confusion  of  goods,              -           -  IGo 

WRIT  OF  INQUIRY.         -           - 771 

plaintiff  has  option  to  take,  in  all  cases,              .           _           _  772 

WRONGDOER  — 

who  improves  property  taken  or  converted,              _            _            .  163 

distinction  made  in  matter  of  proof,        -           -           .           -  173 

partial  satisfaction  by  one  of  several,  a  mitigation,            -           -  244 

See  Exemplary  Damages,  ------  710 


I 


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